Reconciliation and Social Justice Library
Reconciliation and Social Justice Library
"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. 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."
Underlying such relationships is the scope for one party to exercise a discretion which is capable of affecting the legal position of the other. One party has a special opportunity to abuse the interests of the other. The discretion will be an incident of the first party's office or position (612). The undertaking to act on behalf of, and the power detrimentally to affect, another may arise by way of an agreement between the parties, for example in the form of a contract, or from an outside source, for example a statute or a trust instrument. The powers and duties may be gratuitous and "may be officiously assumed without request" (613).
The defendant argued that there is no source for any obligation on the Crown to act in the interests of traditional titleholders and that, given the power of the Crown to destroy the title, there is no basis for a fiduciary obligation. This can be answered in two ways. First, the argument ignores the fact that it is, in part at least, precisely the power to affect the interests of a person adversely which gives rise to a duty to act in the interests of that person (614); the very vulnerability gives rise to the need for the application of equitable principles. The second answer is that the argument is not supported by the legislative and executive history of Queensland in particular and of Australia in general. In the present case, a policy of "protection" by government emerges from the legislation, examples of which are quoted above, as well as by executive actions such as the creation of reserves, the removal of non-Islanders from the Islands in the 1880s and the appointment of a school teacher and an "adviser" in 1892. More general indications include the stated policy of protection underlying the condemnation of purported purchases of land by settlers from Aborigines as, for example, the John Batman incident referred to earlier. And even the general presumption that the British Crown will respect the rights of indigenous peoples occupying colonised territory, as discussed above, itself indicates that a government will take care when making decisions which are potentially detrimental to aboriginal rights.
The defendant: also argued that the Crown cannot be a trustee or fiduciary in the present circumstances because its responsibilities towards the Islanders with respect to the reserve are a matter of "governmental discretion", in reliance upon the "political trust" decisions in Kinloch v. Secretary of State for India (615) and Tito v. Waddell (No.2) (616), rather than an enforceable equitable obligation. In Kinloch Lord Selborne L.C. said (617):
" Now the words `in trust for' are quite consistent with, and indeed are the proper manner of expressing, every species of trust - a trust not only as regards those matters which are the proper subjects for an equitable jurisdiction to administer, but as respects higher matters, such as might take place between the Crown and public officers discharging, under the directions of the Crown, duties or functions belonging to the prerogative and to the authority of the Crown. In the lower sense they are matters within the jurisdiction of, and to be administered by, the ordinary Courts of Equity; in the higher sense they are not."
Whether the idea of a political or "higher" trust has any utility need not be considered here because it does not, in any case, apply in the present circumstances. Kinloch concerned a specific grant of goods by Royal Warrant to the Secretary of State for India in Council "in trust" for armed forces personnel. The interest claimed to be held in trust was created expressly by the Crown itself. If a traditional title exists, it arises as a matter of common law, quite independently of any grant or other action on the part of the Crown. And if it is extinguishable, then the existence of the power is also a matter of law, independent of legislation or the Crown's action. Ultimately the decisions in both Kinloch and Tito v. Waddell (No.2) (618) turned on the construction of an instrument to determine whether it created an express trust. The obligation relevant in the present case arises as a matter of law because of the circumstances of the relationship.
The defendant further relied on Williams v. Attorney-General for New South Wales (619). In that case, this Court held that use by the Crown of land for a Governor's residence in New South Wales did not dedicate the land for a public purpose so as to create a trust for the benefit of the public of New South Wales or of the United Kingdom, comprising the right to have the land continue to be used for that purpose. But the decision with respect to the trust question turned on the impossibility of specifying the interest in the land to which the public were entitled (620). No such difficulty occurs here.
In Guerin the Supreme Court of Canada held that the Crown had a fiduciary duty towards the Indians. Dickson J. (Beetz, Chouinard and Lamer JJ. concurring) said (621):
" 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 lands does not, however, in itself give rise to a fiduciary relationship between the Indians and the Crown. The conclusion that the Crown is a fiduciary depends upon the further proposition that the Indian interest in the land is inalienable except upon surrender to the Crown."
In its terms the fiduciary obligation found by Dickson J. depended on the statutory scheme prescribing the process by which the Indian land could be disposed of (622). But the relevant elements of that scheme appear to be that the Indians' interest in land was made inalienable except by surrender to the Crown, arguably an attribute of traditional title independent of statute in any case.
Be that as it may, if the Crown in right of Queensland has the power to alienate land the subject of the Meriam people's traditional rights and interests and the result of that alienation is the loss of traditional title, and if the Meriam people's power to deal with their title is restricted in so far as it is inalienable, except to the Crown, then this power and corresponding vulnerability give rise to a fiduciary obligation on the part of the Crown. The power to destroy or impair a people' s interests in this way is extraordinary and is sufficient to attract regulation by Equity to. ensure that the position is not abused. The fiduciary relationship arises, therefore, out of the power of the Crown to extinguish traditional title by alienating the land or otherwise; it does not depend on an exercise of that power.
Moreover if, contrary to the view have expressed, the relationship between the Crown and the Meriam people with respect to traditional title alone were insufficient to give rise to a fiduciary obligation, both the course of dealings by the Queensland Government with respect to the Islands since annexation - for example the creation of reserves in 1882 and 1912 and the appointment of trustees in 1939 - and the exercise of control over or regulation of the Islanders themselves by welfare legislation - such as The Native Labourers' Protection Act of 1884 (Q.), The Torres Strait Islanders Act of 1939 (Q.) under which an Island Court was established and a form of "local government- instituted, and the Community Services (Aborigines) Act 1984 (Q.) - would certainly create such an obligation.