then proceeds to contravene them comprehensively.116 Which is why the fol-lowing caption, from anthropologist Michael Taussig’s The Nervous System, struck us so powerfully:117
This empty space is where I would liked to have presented Spencer and Gillen’s drawing of the frog totem because it seems to me next to impossible to get the points across without this amazing image. But my friend Professor Annette Hamilton, of Macquarie University, Sydney, tells me that to repro-duce the illustration would be considered sacrilege by Aboriginal people – which vindicates not only the power of the design but of the prohibitions against its being seen, strenuously noted but not observed by Spencer and Gillen themselves.
It is powerful precisely because it is an ethical stance that confounds the premis-es of equitable notions of breach of confidence. Given that Spencer and Gillen’s book is available in most university libraries, Taussig’s gesture seems gratu-itous according to the standards imposed by an equitable duty of confidence.
Yet it recognises the practical legitimacy of Aboriginal constraints on publica-tion. Such legitimacy, in turn, has been reinforced by the historical experience of colonisation – an experience that renders Megarry’s ‘reasonable man’ quite useless as a conceptual tool:118
Against the will to know which western science and liberalism have launched against Aboriginal peoples – to subjugate by finding out about them – the people have practised strategic non-disclosure. Against a hypocritical libera-tionist ideology: ‘Express yourself freely and you too will be free’, Aboriginal people have often preferred to remain free on their own terms. One of the major strategies whereby Aboriginal people have retained a value for their culture is silence and the public/secret division.
VULNERABILITY, POWER AND AGENCY: THE ROLE OF
beneficiary. Whereas the trustee-beneficiary relationship is a clear example of a fiduciary relationship, the existence of a fiduciary relationship does not depend upon there being a property interest at stake and so the term potentially covers a broad range of social relationships that are characterised, in one way or another, by dependency and reliance.
Interestingly, the extension of fiduciary doctrine beyond the trustee-beneficiary relationship was first countenanced in the world of commerce – for example, in the elementary commercial relationships of partnership and agency – where contract premised on self-interested behaviour was pre-emi-nent.119 How useful or appropriate, then, is fiduciary doctrine for analysing relationships outside the world of commerce?
In a recent Canadian Supreme Court decision, McLachlin J firmly advocated the utility of fiduciary doctrine in characterising the relationship between a doctor and patient, and in doing so criticised those judges who seemed to want to restrict the doctrine to commercial matters:120
None of the appellate judges who have written on the case offers a convincing demonstration of why it is wrong to characterise the relationship between Dr Wynrib and Ms Norberg as a fiduciary relationship.
In particular, she criticised Sopinka J’s ‘closed, commercial view of fiduciary relationships’,121and argued for an extension of the doctrine in keeping with the role of fiduciary obligation in ‘recognising new claims of the disempowered against the exploitative’.122
In that case, Laura Norberg, a Canadian Aboriginal woman, was prescribed increasing amounts of pain-killers in her late teens. By the time her pain was diagnosed as linked to an abscessed tooth, she had become addicted to the pain-killer Fiorinal. Norberg was unable to obtain an adequate supply until Dr Wynrib told her that he would continue to prescribe her Fiorinal in exchange for sex. Over the course of a year, Norberg regularly visited Wynrib and exchanged sex for the pain-killer (Dr Wynrib remained her general practi-tioner for this period). After a conviction under the Narcotic Control Act and successfully completing drug rehabilitation, Norberg took legal action against Dr Wynrib for sexual assault, breach of fiduciary duty and negligence.
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119 This shows, as Graham Moffat points out, that commerce and trust might not be easily sep-arated and that ‘trust’ in its social sense may be both necessary and present in all complex economic systems: Moffat, above n 2, 569.
120 Norberg v Wynrib(1992) 92 DLR (4th) 449, 495.
121 Ibid, 495.
122 Ibid, 500. The potential for development here has been realised by the Canadian Supreme Court in M(K) v M(H) (1992) 96 DLR (4th) 289 where the child-parent relationship was found to be a fiduciary one such that a child incest victim could sue for breach of fiduciary duty. The tactical advantage of this is that the claim is not subject to the limitation periods that apply to actions for battery: see Morgan, J and Graycar, R, ‘Disabling Citizenship: Civil Death for Women in the 1990s’ (1995) 17 Adelaide Law Review49.
Whereas three judges found for Norberg in the tort of battery, McLachlin J (with L’Heureux-Dube J concurring) argued that ‘only the principles applicable to fiduciary relationships and their breach encompass [the relationship between Wynrib and Norberg] in its totality’.123 McLachlin J argued that any relationship between a doctor and patient is characterised by ‘submission’ and
‘comparative powerlessness’ on the part of the patient.124This is heightened for women who are particularly vulnerable to sexual exploitation by doctors,125 and in this case was further heightened by Norberg’s drug addiction.126Given these references to Norberg’s ‘particular’ vulnerabilities, it is unclear from McLachlin J’s judgment whether all doctor-patient relationships exhibit the indicia of fiduciary relationships.
Intriguingly, in a judgment couched in terms of power and inequality and concerned with mapping Laura Norberg’s ‘particular’ vulnerabilities, McLachlin J made no mention of Norberg’s race; neither did any of the other judges,127and the only reason our colleagues teaching equity know that Laura Norberg was Aboriginal is that a visiting scholar from Canada told them of this fact.128
Arguably, the fact of Norberg’s race adds nothing to McLachlin J’s judg-ment. Yet we would imagine that the historical circumstances of colonisation would often result in a structural vulnerability of indigenous people vis-à-vis professionals of the settler culture. For example, a recent report by Neville Austin looking at Aboriginal views of hospitals indicated many Aborigines feared hospitals:129
Many Aboriginal families, through their own life experience, see hospitals as places of death, not of healing, and as places where Aboriginal children could still be removed from their loved ones and kin simply because of their Aboriginality.
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123 Ibid, 484.
124 Ibid, 492.
125 By the time of the case the Task Force on Sexual Abuse established by the College of Physicians and Surgeons of Ontario had delivered its report to considerable media atten-tion: see theFinal Report of the Task Force on Sexual Abuse of Patients (1991). The Women’s Legal Education Fund also intervened in the case: for background to the case generally, see Peppin, P, ‘A Feminist Challenge to Tort Law’ in Bottomley, A (ed), Feminist Perspectives on the Foundational Subjects of Law, 1996, p 69, London: Cavendish Publishing.
126 The Women’s Legal Education and Action Fund in particular argued for the conceptualisa-tion of drug addicconceptualisa-tion as a disability and condiconceptualisa-tion of disadvantage: Peppin,ibid, 76–77.
127 The three judges who found for Norberg in tort did so by also using the language of inequality and power imbalance to analyse the quality of consent in terms of agency or effi-cacy, a potentially useful importing of equitable notions of unconscionability into the realm of tort law. McLachlin J by contrast saw any talk of ‘consent’ in abusive relationships as a red herring. See the discussion by Peppin, ibid.
128 This is one, albeit haphazard, way of surmounting the undertelling of the facts in many appellate court judgments. The scholar in question was Mary Jane Mossman; the racial dynamic of the case is mentioned in Peppin, above n 125, but not in any other of the com-mentaries we have come across.
129 ‘Aborigines Fear Hospitals: Study’, Age, 29 August 1996.
These perceptions come from the lived experience of colonisation, not some innate ignorance or primitivism, and most importantly in this context such perceptions result in a shame at not being confident enough in this environ-ment to ask medical staff direct questions regarding their children’s treatenviron-ment or condition.130 The erasure of Norberg’s race would seem to suggest the inability of white judges to build into their analysis a recognition of these economies of racial privilege and subordination outside of classic ‘equal oppor-tunity’ scenarios. It also indicates a common blindness to intersecting disadvantages: just as the High Court in Amadio could only construct Mr and Mrs Amadio’s disadvantage in terms of migrantness, rather than seeing the role that gender played in Mrs Amadio’s situation,131 here the court seemed intent on using gender as an organising principle while ignoring the role of race.132
Again, if fiduciary analysis begins – as aspects of McLachlin’s judgment indicates it might – from concepts of vulnerability and dependency, does incor-porating race into fiduciary analysis merely reinforce the perception of a pathologised helplessness? Does the fiduciary model replicate a paternalistic model – whether of doctor-patient relationships, or, say, of government-Aboriginal relationships?
This latter area was a burgeoning field of scholarship in the wake of Toohey J’s judgment in Mabo v Queensland (No 2)133 whereby fiduciary doctrine was seen as potentially reshaping the legal understanding of the duties and obliga-tions of the Australian government to Aborigines.134At the time of writing, however, the Wik case suggests that the mere vulnerability of Native Title to the Crown’s power to extinguish it without the consent and contrary to the inter-ests of indigenous peoples does not in itself create ‘some free-standing fiduciary duty’.135More importantly for our discussion, if the law accepts rela-tionships such as that between guardian and ward as paradigmatic of the fiduciary relationship, do we really want to use this as the model for Crown-Aboriginal relationships? On the one hand, it does encapsulate the reality of much of the colonial experience for many Aborigines, particularly the era of
‘protectionism’; on the other, we want to ask whether it denies their historical agency and whether it supplies a satisfactory model on which to proceed into the future.
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130 Ibid.
131 See Otto, above n 51.
132 See generally Crenshaw, K, ‘Mapping the Margins: Intersectionality, Identity Politics and Violence Against Women of Color’ (1991) 43 Stanford Law Review1242; Stubbs, J and Toulmie, J, ‘Race, Gender and the Battered Woman Syndrome: An Australian Case Study’
(1995) 8 Canadian Journal of Women and the Law122.
133 (1992) 175 CLR 1.
134 See, eg, Di Marco, L, ‘Fiduciary Obligations and Native Title’ (1994) 19 Melbourne University Law Review868; Tan, D, ‘The Fiduciary as Accordian Term: Can the Crown Play a Different Tune?’ (1995) 69 Australian Law Journal440.
135 Wik Peoples v Queensland; Thayorre People v Queensland(1996) 71 ALJR 173, 194, perBrennan J.
Yet it is useful to recall that the relationships between equal parties – such as between partners in a law firm, say, or between company directors – are also fiduciary relationships. Ian Rotman argues that it is helpful to think of a fiduciary relationship as a transfer of powers from the beneficiary to the fiduciary. That is, the powers originally belonged to the beneficiaries ‘and, in fact, still do’; the beneficiary has merely loaned the powers ‘within the ambit of their fiduciary relationship’. The fiduciary must act within the parameters established through the transfer of powers in the beneficiary’s best interests.136In this way, Rotman argues, fiduciary relations do not require constructing Aborigines as subordinate to the Crown:137
Such an understanding ... is a purely colonialist vision of Crown-Aboriginal relations and has no foundation in historical reality. The Crown-Native fiducia-ry relation has its origins in the interaction between the groups in the immediate, post-contact period. During the formative years ... Crown-Native relations were based on mutual need, respect, and trust ... Consequently, the nature of the Crown’s fiduciary obligations is founded on the mutually recog-nised and respected sovereign status of the Crown and Aboriginal peoples.
Whether the post-contact history of settler and Aborigines in Australia can give rise to a similar interpretation is doubtful, but the historical, social and legal aspects of specific Crown-Aboriginal relationships need to be teased out,138 and they may be found in local histories rather than in broad generalities.139 More importantly, Rotman’s point is that fiduciary doctrine is intimately linked to the affirmation of a beneficiary’s agency, not its denial. This does not entirely resolve the problem of representation we flagged earlier, of how teachers and lawyers are to negotiate the line between not wanting to portray indigenous groups as perpetual victims and lacking in agency, while at the same time recognising that historically a great many structures have conspired to actually deny them their full agency. At one point in Norberg, McLachlin J in fact gives a reading of fiduciary doctrine similar to Rotman’s: ‘a physician takes the power which a patient normally has over her body, and which she cedes to him for the purposes of treatment ... it is as though the fiduciary has taken power which rightfully belongs to the beneficiary on the condition that the fiduciary exercise
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136 Rotman, L, Parallel Paths: Fiduciary Doctrine and the Crown-Native Relationship in Canada, 1996, p 169, Toronto: University of Toronto Press. Similarly, Paul Finn suggests that in this way fiduciary doctrine is a useful model for Crown-citizen relations in general in a democ-ratic polity, not just Crown-Aboriginal relations: ‘A Sovereign People, A Public Trust’ in Finn, PD (ed), Essays on Law and Government(1996) Vol 1: ‘Principles and Values’, 1, 9ff, Sydney: LBC.
137 Ibid, 13.
138 Ibid, 15.
139 See, eg, Cassidy, J, ‘A Reappraisal of Aboriginal Policy in Colonial Australia: Imperial and Colonial Instruments and Legislation Recognising the Special Rights and Status of the Australian Aboriginals’ (1988) 10 Journal of Legal History 365; Reynolds, H, The Fate of a Free People, 1995, Melbourne: Penguin; Sweeney, D, ‘Broken Promises: The Crown’s Fiduciary Duty to Aboriginal Peoples’ (1995) 75 Aboriginal Law Bulletin4.
the power entrusted exclusively for the good of the fiduciary’.140Rotman argues for a ‘functional approach’ to fiduciary doctrine, to see it as a means of protecting the integrity of socially valuable or necessary relationships that arise from the human interdependency or situations of reliance that are an inevitable part of modernity.141But there is the further question that Patricia Peppin asks about the potential role of law in empowering the subordinate in such ‘socially valuable’ relationships: would it ‘be preferable to state that patients retain decision-making power over their bodies throughout the transaction, while granting the physician permission to perform a particular treatment’?142