Dr Jonathan Fulcher
Recent Federal Court decisions of Justice Rares have suggested that Native Title applicants should be considered fiduciaries. This is because of their role as negotiators of, and receivers of money under, Native Title agreements with developers. They ought to be considered fiduciaries in relation to those ultimately found to be the Native Title holders of the land over which the agreements are made. This has generated some legal commentary suggesting that such a characterisation of the applicant’s role is inconsistent with the Native Title Act provisions which allow agreements to be entered into in advance of Native Title determinations being made. This paper examines these judgments and commentary and argues that the fiduciary idea is a useful way of managing the behaviours of those receiving moneys under Native Title agreements.
The paper also suggests that Justice Rares’ concern to protect the ultimate Native Title holders does not take into account the fact it is the current common law holders that exist now who are the beneficiaries under these agreements, and what gives rise to a fiduciary relationship between the applicants and claim group members. This is despite the fact that the class of such common law holders cannot be closed until the determination of Native Title provides for who the Native Title holders are.