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This chapter argues that enforceable fiduciary obligations owed by states to Indigenous peoples are best understood as private duties. The private character of state fiduciary duties is unnecessarily obscured by judicial findings that analogise them to private law ones and characterise the relationship as ‘sui generis’. We argue that there is little to be gained by characterising state-Indigenous fiduciary duties, expressly or by implication, as public duties. The private rights and duties generated within state-Indigenous relationships are structurally and substantively distinct from, and sometimes methodologically and normatively opposed to, the more general relationship between state and subjects that underpins public law and liberal political theory. For Indigenous peoples the crucial utility and promise of the state-Indigenous fiduciary relationship depends on the orthodoxy that the state does not, in general, owe fiduciary duties to its subjects. State-Indigenous fiduciary duties can and should function as a corrective to general public and administrative law, one that preserves space for this unique relationship and enables the enforcement of the distinctive rights and duties that attend it. For these reasons we argue that state Indigenous examples should not be used to model an emergent public fiduciary law or fiduciary political theory.
The pluralist turn in jurisprudence has led to a search for new ways of thinking about law. The relationships between state law and other legal orders such as international, customary, transnational or indigenous law are particularly significant in this development. Collecting together new work by leading scholars in the field, this volume considers the basic questions about what would be an appropriate theoretical response to this shift: how precisely is it to be undertaken? Is it called for by developments in legal practice or are these adequately addressed by current legal theory? What normative challenges are raised, and what fresh promises might the pluralist turn hold? What distinctive insights can it offer for theorising about law? This book presents a rich variety of resources drawn from a number of theoretical approaches and demonstrates how they might be brought together to generate an increasingly important pluralist jurisprudence.