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This chapter explores the normative foundations of judicial review by rounding back on the concept of office. Judicial review exists to ensure that repositories of official power act only within the scope of the powers reposed in them. Official ‘power’ is inherently limited in virtue of being translated into official ‘powers’ (i.e., vires) that are implicitly capable of judicial interpretation and enforcement. The same applies for the constrains (i.e., rules of conduct) that operate on the manner, form, and purpose of their exercise. This gives rise to a concept of the rule of law as the rule of officials acting lawfully, which is a powerful expression of the ‘rule of law, not of men’ strand of thinking that traces back to Bracton at least. Office provides a superior point of departure than the radical English notion of parliamentary soveriegnty. This makes an appropriate concept of ‘public trust’ or ‘public fiduciary law’ the best expression of the conceptual and normative basis of judicial review. Far from being a slipshod translant of private law fiduciary remedies into public law, the emerging idea of ‘public fiduciary law’ is an apt expression of the deeper logic of office.
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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