The Stolen Generation : Canadian and Australian Approaches to Fiduciary Duties

The key purpose of this article is to critically evaluate the recent Australian decisions in Cubillo & Gunner v. The Commonwealth that considered the fiduciary duties owed by the Commonwealth to the aboriginal claimants. The broader factual basis of the plaintS' causes of action was their removal from their families and subsequent detention as part of what is known as the stolen generation. "It is contended that it was arbitrary and illogical for the courts to deny equity's applicability to the subject case simply because there was an absence of an economic loss and the facts also gave rise to a tort relationship. It is suggested that the contrary line of authority in Canada is to be preferred. It is also contended that the relevant duties stemming from the Crown's general fiduciary relationship with the aboriginal peoples that arose out of settlement are not confined to protecting aboriginal interests in the extinguishment of aboriginal title. Rather it includes a general duty to act with care in the best interests of the aboriginal peoples. In turn, it is suggested that this duty may also have been breached through the removal and detention of part-aboriginal children