Public/Private Distortions and State-Indigenous Fiduciary Relationships

Abstract

This article explores two related aspects of the applications of fiduciary theory and doctrine to state-Indigenous relationships. The first is the interaction of fiduciary political theory with fiduciary law that is triggered by any attempt to treat the state as a ‘public fiduciary’. The second is the interaction of the public and private roles, offices, or statuses of the relating parties in such a relationship. I argue here that both the interaction of political and legal claims, and the entangling of private and public roles, cast doubt on the utility and desirability of fiduciary modelling of state-Indigenous relations. While the New Zealand Supreme Court’s 2017 decision in Wakatū v A-G marks an important achievement in upholding the private rights of Indigenous claimants against the Crown, more care is required over the applicability and normative implications of fiduciary law in light of both its own limitations, and the limitations of fiduciary political theories.