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The State has been a mythological entity through its history, from its sovereign phase to its present dispersed, nodal, regulatory phase. This dispersal raises important questions about gradual disappearance of public accountability. It also points to such other key issues as the dilution of personal responsibility, especially when considered in the context of the determinative implications of neuroscientific research. These trends are further emphasised by the increasingly avaricious, non-consensual digitisation of the State and the threat to democratic values posed by such trends as data brokering and algorithmic friendliness. The consequential move to a non-mythological State can be produced by the reimagining of agencies as purpose-based and which operate on existential, fiduciary principles in a manner that avoids Pettit’s republicanism. How this transition can take place is evidenced by the difference between mythological and non-mythological criminal justice, a model for which is presented.
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.
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