Equity and the 'Honour of the Crown(s)' in Settler State Legal and Political Theory

In Canada and New Zealand, but not in Australia, equity has emerged as a powerful tool in the management of state-indigenous relations, reaching back to its origin in sovereign discretionary power, and borrowing from the private law of trusts and fiduciary duty, to personify the settler executive as the Crown and condition, through the “honour of Crown” doctrine, its dealings with indigenous peoples and their property. This paper considers the ways in which equitable concepts have been developed by courts to insulate state-indigenous relations from the normal application of administrative law, and how such concepts might assist in the Canadian and Australian federations to reconcile the sub-national specificity of executive dealings with indigenous peoples with the idea of a unified state-wide common law.