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HIGH COURT DECISION ON MABO - (II) NATURE OF THE OBLIGATION
To say that, where traditional title exists, it can be dealt with
and effectively alienated or extinguished only by the Crown, but
that it can be enjoyed only by traditional owners, may be
tantamount to saying that the legal interest in the traditional
rights is in the Crown whereas the beneficial interest in the
rights is in that indigenous owners. In that case the kind of
fiduciary obligation imposed on the Crown is that of a constructive
trustee. In any event, the Crown's obligation as a fiduciary is in
the nature of, and should be performed by reference to, that of a
trustee.
In
Guerin
Dickson J. said (623), referring to the Crown's duty towards the
Musqueam Indians:
" This obligation does not amount to a trust in the private law
sense. It. is rather a fiduciary duty. If, however, the Crown
breaches this fiduciary duty it will be liable to the Indians in
the same way and to the same extent as if such a trust were in
effect."
Thus, the fiduciary obligation on the Crown, rooted in the
extinguishability of traditional title, is in the nature of the
obligation of a constructive trustee (624).
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