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Sweeney, Desmond --- "Broken Promises: the Crown's Fiduciary Duty to Aboriginal Peoples" [1995] AboriginalLawB 44; (1995) 3(75) Aboriginal Law Bulletin 4


Broken Promises: the Crown's Fiduciary Duty To Aboriginal Peoples

by Desmond Sweeney

A major unresolved issue in Crown-Aboriginal relations is whether a fiduciary relationship exists between the Crown and Aboriginal peoples. Such a duty has a capacity to fundamentally reshape Crown-Aboriginal relationships to an even greater degree than the Mabo (No. 2) decision on native title[1]. Legal writers have considered the possibility of such a fiduciary duty, which, it has been argued, may arise out of the nature of native title itself, or by some voluntary undertaking or assumption of responsibility by the Crown. However, discussion of the possibility of such a voluntary undertaking by the Crown has necessarily been in the abstract, as there has been no evidence generally available of a particular promise by the Crown to Aboriginal peoples.

This has changed with Henry Reynolds' recent book Fate of a Free People[2]. Reynolds undertakes a careful analysis of Crown-Aboriginal relations in the early days of Tasmania and reconstructs various oral agreements reached between certain Aboriginal tribes and the Crown. His primary thesis is that these agreements constitute a treaty between those Aboriginal tribes and the Crown. Reynolds also mentions briefly the possibility of a fiduciary duty, but does not explore this in detail.[3] The purpose of this article is to consider whether, if the events described by Reynolds do not give rise to an enforceable treaty, they nevertheless give rise to an enforceable fiduciary obligation on the Crown.

Background

According to Reynolds[4], the so-called Black Wars in the 1820s in Van Diernea s Land (as Tasmania was then known) resulted in hundreds of whites and Aborigines being killed. However, the whites did not manage to eradicate or pacify the Aboriginal tribes, who remained a dangerous foe to the colonialists as white settlement continued to expand.

The Governor of the colony, Lieutenant-Governor Arthur, considered that it had been a great oversight that a treaty had not been made at the time of the first occupation of Tasmania, and 'urged the Colonial Office's officers to negotiate treaties and arrange for the purchase of indigenous land in all future colonizing ventures'. His dispatches to the Colonial Office on numerous occasions referred to his desire for negotiation with the Aborigines and, in April 1828, his proclamation referred to a plan for 'negotiation with certain chiefs of Aboriginal tribes. His intention at that fime was to give up one district of land to the Aborigines 'for their exclusive benefit and continued occupation'. This was not achieved, due to dissension amongst the tribes, and the Governor derided to drive the Aborigines out of the settled districts (then comprising about one quarter of the colony). When that also failed, the government proposed to force the Aborigines onto the Tasman and Forestiers Peninsulas in the far southeast, where they would be required to remain beyond the so-called 'Black Line'. Ultimately that plan was considered impractical, as settlers could not be assured that Aborigines would not traverse the line. Accordingly, the government considered a plan to relocate the Aborigines to Flinders Island in Bass Strait.

A small settlement had been established in the 1820s for Aborigines on Bruney Island in Bass Strait. George Augustus Robinson had been employed by the government in March 1829 to oversee the settlement. In June 1829, Robinson proposed that he mount an expedition, with a party of Aborigines residing on the island, to visit Aboriginal clans resident on the west coast of Tasmania.

In December 1829 the Colonial Secretary accepted Robinson's proposal, defining the purpose of the expedition as 'endeavouring to affect an amiable understanding with the Aborigines in that quarter and through them with the natives in the interior'. In what became known as the 'Friendly Mission', Robinson made six expeditions between 1830 and 1834, as a result of which the remaining Aboriginal tribes were voluntarily relocated, without the use of force, to the Wybalenna settlement on Flinders Island.

Reynolds argues that the Aboriginal tribes only agreed to relocate voluntarily to Flinders Island after being given various promises by Robinson.

Terms of promises

The Secretary of the Aborigines Committee, in a letter to the Colonial Secretary in February 1831, stated that the Aborigines were to be offered 'inducements of food and clothing' and 'a country where under the protection of the Government they would be protected from hostile whites'.

Robinson subsequently wrote 'it was guaranteed by me ... that ... as far as practicable they [the Aborigines] were in the summer months under proper protection to occasionally visit their native districts' and that he promised the Aborigines 'their customs were to be respected, and not broken into by any rash or misguided interference'.

According to Robinson's journal, during his negotiations with the Manalargenna tribe he informed their chief:

'that, if the natives would desist from the wonted outrages upon the whites, they would be allowed to remain in their respective districts and would have flour, tea and sugar, clothes etcn given to them; that a good white man would dwell with them who would take care of them and would not allow any bad white man to shoot them, and he would go with them about the bush like myself and they then could hunt. He was very much delighted'.

As to the Aboriginal understanding of the agreement, the older people at Wybalenna recalled that Robinson 'told them that they should have everything that they wanted ... plenty of tea, Sugar and flour and have fine houses, Blankets, Rugs and Bedding when they came to Flinders Island'.[5]

In summary, it would appear that Robinson promised that if the Aborigines agreed to relocate to Flinders Island[6] and ceased hostilities, the Crown would:

(a) provide land for their use;
(b) permit them to occasionally visit their traditional districts;
(c) respect and not interfere with their customs;
(d) ensure they would live under the protection of the government; and
(e) supply provisions for them.

The solemnity with which the Aborigines viewed the promises is reflected in a petition signed by eight Aborigines living at Wybalenna presented to Queen Victoria in March 1847. The petition stated in part that 'Mr Robinson made for us and with Colonel Arthur an agreement which we have not lost from our minds since and we have made our part of it good'. Similarly, at a subsequent inquiry, one petitioner stated: 'I told the Queen that we had given up our country and came to this Island and we expected in return to have what we wanted'.[7]

Were the promises made on behalf of the Crown?

Assuming that promises were made by Robinson to the Aboriginal tribes he encountered, the questions arise as to the capacity in which Robinson made the promises, and whether the promises bind the Crown. The resolution of these issues is beyond the scope of this article. However, there appears to be considerable evidence to support the proposition that not only did Robinson have authority to make the promises on behalf of the Crown, but further, that the Crown was aware that promises were being made by Robinson on his expeditions and acquiesced to the continuance of his expeditions.

For example, in December 1829, after receipt of Robinson's proposal for his first expedition, the Colonial Secretary approved Robinson's proposed expedition, defining the purpose as 'endeavouring to effect an amiable understanding with Aborigines in that quarter, and through them with the natives in the interior'.[8] Similarly, Governor Arthur wrote to Sir George Murray in London on 15 April 1830 that Robinson was 'employed on an embassy of conciliation'.

Robinson himself certainly thought he had authority to made the promises on behalf of the Crown. He had been employed by the Government for the purpose of, inter alia, 'effecting an intercourse with' the 'Aboriginal inhabitants of this territory'. His journal entry of his negotiation with the chief of the Manalargenna tribe records that 'I informed him ... that I was commissioned by the Governor to inform them... '. In a report written in 1838, when referring to the promises he states 'it was guaranteed by me on behalf of the government that ... '. Similarly, in 1835, he wrote that the Aborigines 'relied with implicit faith on the fulfilment of the promises I made to them on behalf of thegovernment'.

There appears to be no doubt that the Aborigines regarded Robinson as having authority to make the promises. As Robinson wrote to the Colonial Secretary on 18 January 1834, the Aborigines 'considered me, as the ostensible agent on the part of the government'.

A promise as a fiduciary undertaking

Assuming the facts as set out by Reynolds, the question arises whether they give rise to a fiduciary duty on the Crown towards the Tasmanian Aborigines.

In Hospital Products Ltd v United States Surgical Corporation, Mason J stated the critical feature of a fiduciary relationship is that the

'fiduciary undertakes or agrees to act for or on behalf of or in the interests of another person in the exercise of a power or discretion which will affect the interests of that other person in a legal or practical sense.

The relationship between the parties is therefore one which gives the fiduciary a special opportunity to exercise the power or discretion to the detriment of that other person who is accordingly vulnerable to abuse by the fiduciary of his position'.[9]

In the Mabo (No. 2) case, certain judges considered the possibility of a fiduciary obligation on the Crown towards Aborigines in respect of its dealings with native title, but did not address whether such a duty could arise out of a promise by the Crown. Subsequently, in Coe v Commonwealth [10], Mason CJ considered the issue in an interlocutory hearing. The plaintiff alleged that the Crown was under a fiduciary duty to the Wiradjuri people, as a result of representations made by the Crown to the Wiradjuri people to the effect that the Crown would continue to recognise the personal and usufructuary rights of the Wiradjuri, and their laws, customs and practices. Mason CJ ultimately struck out the statement of claim for two reasons, for having been brought for an improper ulterior purpose, and also due to inadequacies in the pleadings. (However, he did give the plaintiffs leave to replead certain matters.) Nevertheless, Mason CJ accepted that 'in some circumstances a fiduciary relationship may arise out of a representation, just as it may arise out of an undertaking'[11].

In the case of the Tasmanian Aborigines, the fulfilment of the promises made by the Crown to protect and maintain the Aborigines at Flinders Island, and to permit them to return to visit their homelands, required the Crown to exercise the practical power it thereby acquired over the Aborigines (through their agreeing to leave their traditional lands and placing themselves largely under the Crown's control). Similarly, by agreeing to the Crown's proposal to leave their traditional lands, the Aborigines were placing themselves in a vulnerable position, as there was little practical means of redress if the Crown failed to honour its undertakings. It is precisely these types of situations that courts of equity have sought to deal with by expanding equitable principles. While not falling within a traditional category of fiduciary relationship, the Crown, by its promises and inducements to the Aborigines, placed itself in a position which arguably satisfies the indicia of a fiduciary relationship set out in the Hospital Products case.

In addition to a fiduciary duty arising out of a promise, there may be other sources of a fiduciary duty on the Crown in relation to the Tasmanian Aborigines. Two of these are a fiduciary relationship arising out of native title, and one arising out of a guardianship relationship.

Native title as a source of fiduciary obligation

Arguably the Crown is under a fiduciary duty towards native title holders in respect of the Crown's actions affecting native title. Such a duty would have its source in the particular vulnerability of native title holders to the Crown's unilaterally extinguishing native title, and the ability of the Crown to control the manner of the surrender of native title. A fiduciary duty has been held to exist in similar circumstances in Canada.[12] The existence of such a duty was left open by the High Court in Northern Land Council v Commonwealth (No. 2)[13]. In Mabo (No. 2) the only judge of the majority to consider fiduciary duties in detail was Justice Toohey.[14] Having referred to the inalienability of native title except to the Crown, and the vulnerability of native title due to the power of the Crown to extinguish it, Toohey J held that 'this power and corresponding vulnerability give rise to a fiduciary obligation on the part of the Crown'[15]

Assumption of role of guardian

A person who undertakes the role of guardian assumes a fiduciary duty to the persons under his or her care. The Crown may be under a similar obligation where it undertakes the role of guardian. In the recent case of Williams v The Minister, Aboriginal Land Rights Act[16], the New South Wales Court of Appeal held, by a majority, that it was arguable that the Aboriginal Welfare Board (a statutory body) was under a fiduciary obligation to Aboriginal children placed in its care. It was also held the Board was arguably obliged to have 'truly provided, in a manner apt for a fiduciary, for [the plaintiff's] "custody, maintenance and education"'.

In Mabo (No. 2) Toohey J stated if he were wrong in finding that native title alone was a sufficient basis to create a fiduciary obligation, that one may nevertheless be created by the course of dealings by the colonial government, and the exercise of control over Aborigines by welfare legislation[17]. In Toohey J's view this legislation and other executive actions by the government gave rise to 'a policy of "protection" by the government' which, together with the particular vulnerability of Aboriginal people to the exercise of power by the Crown to adversely affect their interests, gave rise to a fiduciary relationship.[18]

In the present example, the arguable consequence of the Crown's action in Tasmania in encouraging the Aboriginal tribes to relocate under its protection, and its promise to protect and maintain them if they agreed, is that the Crown voluntarily took upon itself the role of guardian or protector. Accordingly, the Crown may owe a fiduciary duty towards the Aborigines in respect of whom it stood in a position of guardian. If the Crown is under a fiduciary duty by reason of its role of guardian, then its actions must be considered in light of that duty.

Effect on native title

The impact of an existing fiduciary duty on the Crown's actions in relocating the Tasmanian Aborigines from their traditional lands to Flinders Islands will now be considered.

Reynolds argues the Aborigines who voluntarily relocated to Flinders Island did not cede their traditional lands: 'All the evidence is to the contrary. They expected their departure to be temporary - that they would return, at the very least, for regular visits to their homelands'. It was, according to Reynolds, 'neither a forced removal [by the government] nor a voluntary abandonment of title'[19]. On the basis of those facts, it is unlikely that the actions of the Crown in relocating the Aborigines would result in extinguishment or immediate abandonment of native title.

However, let us assume the contrary for the purpose of argument. In other words, assume that the relocation of the Aboriginal tribes had the legal effect that they were deemed to have abandoned their native title or, alternatively, that the Crown thereby extinguished their native title. In either case, the Aboriginal tribes would have lost their native title by reason of the Crown's action in inducing them to leave (or forcibly removing them from) their traditional lands. In such a scenario, the Crown would have obtained a benefit - as its radical title to Crown land expanded to full beneficial ownership of the land, no longer burdened by native title.

It is a breach of fiduciary duty for a fiduciary to act so to obtain a benefit for himself or herself. In such a circumstance, the fiduciary will be held to hold that benefit on trust for the persons to whom the duty was owed. In the above scenario, while native title may have been abandoned or extinguished over particular areas of Crown land as a result of the Crown's actions, the Crown would be required to hold those Crown lands on trust for the former native title holders. The consequence would be that the former native title holders would be entitled, as against the Crown, to exercise the rights they would have if they still held native title.

If the Crown is under a pre-existing fiduciary obligation arising out of the nature of native title, then promises or actions by the Crown which affect native title must be examined in light of this preexisting obligation. This is particularly so where the promises made by the Crown misled the Aborigines into thinking they would be able to visit their homelands and thereby maintain their connection with the land. Indeed in the Canadian case of Delgamuukw v British Columbia, discussed below, it was the combination of actions by the Crown which resulted in the extinguishment of native title, and specific promises by the Crown to the Aborigines, that gave rise to a specific fiduciary duty.

If one characterises the Crown's role in Tasmania as that of guardian or protector of the Aborigines, it hardly seems just that the Crown's first action in arranging transportation to Flinders Island could result in the Crown obtaining a benefit for itself. The Aborigines, by placing themselves in the Crown's hands to be relocated to an island, and leaving their homelands behind, must have placed a high degree of trust in the Crown. If the Crown's role as guardian carries with it fiduciary obligations then, from the moment of undertaking that role, equity will supervise it to the strict standard required of a fiduciary. Any benefit obtained by the Crown must be held on trust for the benefit of the Aborigines.

A specific example: Delgamuukw v The Queen

A specific example of a promise by the Crown to Aboriginal people founding a fiduciary duty is Delgamuukw v British Columbia.[20] This case may be viewed in two ways. It can be seen as an example of the Crown's actions in extinguishing native title being an additional factor to be taken into account when determining whether a promise by the Crown gave rise to a fiduciary duty. Alternatively, it can be an example of a separate fiduciary duty arising upon the surrender or extinguishment of native title.

The court held that promises made by the Crown in colonial days gave rise to an enforceable fiduciary duty on the Crown to honour the promises made to the aborigines. The court referred to numerous statements by the Crown concerning aborigines. For example, in 1859, Governor Douglas, the governor of the colony, informed the House of Assembly that the aborigines:

'were to be protected in their original rights of fishing on the coasts and in the Bays of the Colony, and of hunting over all unoccupied Crown lands'.

Similarly, in a dispatch in 1860, Governor Douglas wrote:

'I also explained to [the aborigines] ... that they might freely exercise and enjoy the rights of fishing the lakes and rivers, and of hunting over all unoccupied Crown lands in the colony'.[21]

McEachern CJ held the Crown's obligation was to permit aboriginal people, but subject to the general law of the province, to use any unoccupied or vacant Crown land for subsistence purposes until such time as the land was dedicated to another purpose. The Crown would breach its fiduciary duty if it sought arbitrarily to limit aboriginal use of vacant Crown land.[22]

One factor taken into account by McEachern CJ in considering whether the circumstances surrounding the making of promises gave rise to a fiduciary duty was that, at around the time of the making the promises, the Crown implemented statutory schemes for the disposal of Crown land which, in his opinion, extinguished native title.[23] In his view, it was a unilateral extinguishment of a native title accompanied by a promise that formed the basis for a fiduciary obligation on the Crown.[24]

Applying this view to our current facts, if the relocation of the Tasmanian Aborigines to Flinders Island constituted extinguishment by the Crown of native title, then as the extinguishment was accompanied by a solemn promise by the Crown to the Aborigines in relation to the land (ie to be able to hunt and fish on the land or, in the case of the Manalargenna tribe, to be able to return to their land), there will be a corresponding fiduciary duty on the Crown.

As to what would constitute breach of the Crown's fiduciary duty, the Chief justice stated that Ministers of the Crown and public officials must always keep the Aboriginal interests of the plaintiffs very much in mind in deciding what legislation to recommend to the legislature, and what policies to implement in a territory. He imposed a requirement for reasonable consultation in order that aboriginal peoples will know the extent to which their use of land might be terminated or disturbed, and stipulated that the Crown must make genuine efforts to ensure that aboriginal sustenance from and cultural activities upon unoccupied Crown land will not be impaired arbitrarily or unduly. Finally, bearing in mind the honour of the Crown in dealing with aboriginal peoples, it must give some priority, when considering competing uses of Crown land, to Aaboriginal sustenance uses, taking into account reasonable alternatives available, and the nature and extent of the interference.[25]

While the content of the particular duty articulated by McEachern CJ was fairly narrow, this was due to the limited nature of the promise made by the Crown. McEachern CJ characterised the statements as amounting to a promise that vacant lands could be used for aboriginal purposes, subject to the general law, so long as such lands were not dedicated to an adverse purpose[26]. Where a promise is not so limited in its terms, and the circumstances of the giving of the promise give rise to a fiduciary duty, then the duty of the Crown will be correspondingly stronger.

The effect of a particular promise by the Crown to Aborigines will depend upon the true construction of the promise. If the promise is construed as being no more than, say, a guarantee of safe passage, temporary supplies, and a cessation of hostilities, it may have no ongoing impact. However, in construing the content of the promise, it is important to consider the Aboriginal perspective and the special position of the Crown with regards to Aborigines. As the Supreme Court of Canada stated:

'The honour of the Crown is involved in the interpretation of Indian treaties, and, as a consequence, fairness to the Indians is a governing consideration'.[27]

Similarly, American courts have construed treaties 'in the sense in which naturally the Indians would understand them'.[28] There is no reason why this common law principle, applicable to the interpretation of treaties, is of less force when considering promises made to Aboriginal peoples by the Crown which fall short of a binding treaty. As Macfarlane JA of the British Columbia Court of Appeal observed in Delgamuukw, 'in all dealings between aboriginal people and our government, the honour of the Crown is engaged'.[29] It remains to be seen whether Australian courts will adopt this perspective. The honour of the Crown is presently recorded by the legacy of its broken promises to Aboriginal peoples. As the judges in Mabo (No. 2) found, it is not possible to undo centuries of dispossession and injustice. However, it is possible to make reparation to a degree where the Crown is still in a position to do so.

Conclusion

The courts in Australia are yet to recognise the existence of a fiduciary duty on the Crown arising out of a promise by the Crown to Aboriginal peoples. However, as the High Court has observed on numerous occasions, 'the categories of fiduciary relationship are not closed'.[30] Where the Crown makes a promise or a unilateral undertaking which places it in a position to exercise a discretion affecting Aboriginal people, then if the remaining characteristics of a fiduciary relationship are satisfied, the Crown will be under a fiduciary duty towards those Aboriginal people. The relationship between the Crown and Aboriginal peoples in colonial days was one based on power and, ultimately, Crown-imposed dependency. This often left Aboriginal peoples vulnerable to the Crown abusing its power. The courts of equity have striven to protect the vulnerable from abuse by persons with power over them, and the potential for such abuse is one of the hallmarks of a fiduciary relationship. Accordingly, the law of fiduciary relationships may well be the most appropriate means by which to analyse such Crown-Aboriginal relationships.

A fiduciary relationship may arise quite independently from any consideration of native title rights of the Aborigines involved. However, the Crown may also be under a fiduciary duty to Aboriginal people arising out of its power to extinguish native title, or by reason of its assumption of the role of guardian. Where the Crown is under such a duty, then promises or actions by the Crown concerning Aboriginal people must be examined in light of this obligation. Actions by the Crown which result in it obtaining a benefit at the expense of Aboriginal peoples - such as the Crown directly causing native title to be either abandoned or extinguished - may breach the Crown's fiduciary duty, with the result that the Crown holds those Crown lands it acquired on trust for the former native title holders.

In the case of the Aboriginal tribes in Tasmania, the events described by Reynolds may well have given rise to a fiduciary duty on the Crown. The practical consequences of such a duty, and the remedies available to any surviving descendants of the particular Aboriginal tribes, are beyond the scope of this note. However, Reynolds presents interesting concrete examples of the types of promises by the Crown to Aboriginal peoples which may well have been made in other localities across Australia. On one view, the power to made amends for broken promises lies primarily with the legislature. However, as the aftermath of the Mabo (No.2) decision illustrates, the courts have the ability to kick-start the political process. The law of fiduciary relationships may both be the means to provide immediate redress for broken promises, and the catalyst for further change and appropriate reparation in the longer term.


[1] Mabo v Queensland (No. 2) (1992)175 CLR 1.

[2] Henry Reynolds, Fate of a Free People, Penguin Books, Melboune,1995.

[3] Ibid at ppl96-8.

[4] The summary in this section is derived from Fate of a Free People, op cit at ppl22-33.

[5]. Op cit at ppI30-3,151-3.

[6] In the case of the Manalargenna and Stoney Creek tribes, it appears that permanent relocation was not a condition. Rather, Robinson promised that they could remain in their country but would need to temporarily relocate for their immediate protection: op cit at ppl52-3.

[7] Op cit at pp7-s, 13 (emphases added). For a discussion of the inquiry and the circumstances surrounding the petition, see op cit at pp7-16.

[8]Material in this section derived from Reynolds, op cit at pp124-196 (emphases added).

[9] Hospital Products Lid v United States Surgical Corporation [1984] HCA 64; (1984) 156 CLR 41 at 96-97 (emphases added).

[10] [1993] HCA 42; 118 ALR 193; (1993) 68 ALJR 110

[11] Ibid at 117 (ALIR), 202 (ALR).

[12] Guein v The Queen (198412 SCR 335, (1984)13 DLR (4th) 321. See further, Hurley, J., "The Crown's Fiduciary Duty and Indian Tide: Guerin v. The Queen" (1985) 30 McGill Law journal 559; Bartlett, R., "You Can't Trust the Crown: The Fiduciary Obligation of the Crown to the Indians: Guerin v. The Queen", (1984) 49 Saskatchewan Law Review 367; Bartlett, R., "The Fiduciary Obligation of the Crown to Indians" (1989) 53 Saskatchewan Law Review 301; Bryant, M., "Crown Aboriginal Relationships in Canada: The Phantom of Fiduciary Law" (1993) 27 University of British Columbia Lnw Review 19. As to die existence of a similar trust relationship between the government and Indian tribes in the United States, see Leventhal, L., "American Indians - The Trust Responsibility: An Overview" (1985) 8 Ham lima Law Review 625.

[13] [1987] HCA 52; (1967) 61 ALJR 616 at 620. See further, Walker, P., "Recent Cases - Their Practical Significance: Northern Land Council v The Commonwealth (No. 2)" [1988] AMPLA Yearbook 217.

[14] Brennan J limited his observations concerning fiduciary duties to the circumstances where native title holders surrender their native title to the Crown in expectation of a grant of tenure (at 60). Deane and Gaudron JJ did not directly consider fiduciary duties, but stated drat actual or threatened interference with native title would attract the protection of equitable remedies in appropriate circumstances (at 113). Dawson J (dissenting) held that, as in his view native tide did not survive the British claim of sovereignty there was no scope for the imposition of a fiduciary duty (at 163-9).

[15] Mabo (No.2), supra, at 203. See further, Hughes, C., "The Fiduciary Obligations of the Crown to Aborigines: Lessons from the United States and Canada" (1993)

[16] University of New South Wales Law Journal 70; Di Marco, L., "A Critique and Analysis of the Fiduciary Concept in Mabo v Quaensla d" [1994] MelbULawRw 19; (1994) 19 Melbourne University Law Review 868. 16. (1994) 35 NSWLR 497 per Kirby P at 511. As the appeal was from an interlocutory hearing, the court did not consider whether such a duty was established on the facts.

[17] Mabo (No.2) at 203.

[18] Mabo (No.2) at 201.

[19] Reynolds, op cit, pl 96.

[20] (1991) 79 DLR (4th) 185 BCSC).

[21] Delgamuuukw 1991 at 478-9 (emphasis removed).

[22] Delgamuukw 1991 at 482.

[23] On appeal, His Honour's finding that there had been a blanket extinguishment of native tide was oveturned: Delgarnuukw v British Columbia [199315 WWR 97 (BCCA). However, the Court of Appeal did not interfere with the trial judge's finding as to the existence of a fiduciary duty. In Mabo (No. 2) at 205, Toohey J distinguished a fiduciary duty arising in die Delgamuukw 1991 case from the pre-existing fiduciary duty of the Crown which the considered existed in Australia by reason of the power of the Crown to extinguish native title.

[24] . Delgamuukw 1991 at 482

[25] Delgamuukw 1991 at 488-9.

[26] Delgamuukw 1991 at 479.

[27] R v Sparrow 1199011 SCR 1075 at 1107.

[28] Jones v Median 175 US I at 11 (1899); Peoria Tribe of Indians of Oklahoma v United States [1968] USSC 64; 390 US 468 at 472 (1968).

[29] Delgansuukw v British Columbia [1993] 5 W WR 97 at 157(BCCA).

[30] Hospital Products Ltd v United States Surgical Corporation [1984] HCA 64; (1984) 156 CLR 41 at 68, 96,102; Northern Land Council v Can, nonwenlth (No. 2) [1987] HCA 52; (1987) 61 ALJR 616 at 620; see also Mabo (No.2)at 200(per Toohey J).


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