A comparative analysis of constitutional recognition of aboriginal peoples.

Author:Gussen, Benjamen Franklen

CONTENTS I Introduction II A Topology of Constitutional Recognition A Definition of Constitutional Recognition B Current Proposals C Recognition in Australia's Sub-National Constitutions III Comparative Analysis A Constitutional Recognition in Canada B Constitutional Recognition in New Zealand C Constitutional Recognition in Ecuador D Constitutional Recognition in Bolivia IV Envoi I INTRODUCTION

This article provides guidance on the constitutional recognition of Aboriginal and Torres Strait Islander peoples. The issue is of great importance. Internally, the recognition is intended to advance efforts towards national reconciliation. It registers a retreat from cultural hegemony. Externally, Australia's leadership in the international community stands to suffer given the constitutional recognition afforded to Indigenous peoples in other countries, and the international law stance on this point as reflected in the (non-binding) United Nations Declaration on the Rights of Indigenous Peoples ('UNDRIP') (1) and international treaties such as the International Labour Organisation's ('ILO') Convention (No 169) Concerning Indigenous and Tribal Peoples in Independent Countries ('ILO Convention No 169'). (2) This recognition is as important a milestone as was the 1967 inclusion of Indigenous peoples in the national census. It has been debated since 1999, when a constitutional recognition proposal by then Prime Minister John Howard was defeated alongside the republic referendum. During the next 15 years, there were a number of efforts to bring about this constitutional change. Sub-national (state) constitutions were also modified to register some form of recognition, albeit symbolic rather than substantive. (3)

Part of the current drive for constitutional recognition comes from the Aboriginal and Torres Strait Islander Peoples Recognition Act 2013 (Cth). Final proposals have now narrowed the recognition to three main elements:

1 'the placement of a statement of recognition;'

2 'removal of section 25' of the Australian Constitution; and

3 're-formulation' of s 51 (xxvi) of the Australian Constitution. (4)

This article gives more attention to the first element. This element is analysed comparatively with four other jurisdictions. The analysis in Part III suggests that current proposals for recognition are neither wide (addressing the sui generis nature of Indigenous collective rights (5) from within Indigenous jurisprudence (6)) nor dynamic (allowing for evolutionary improvement).

The article is structured as follows. Part II provides a topology of the idea of constitutional recognition to the end of distilling its essential elements. Once the definition of constitutional recognition is clarified, the Part goes on to measure the current proposals for the constitutional recognition against this definition. The analysis suggests that a key part of constitutional recognition, relating to legal authority, is at best 'anaemic' in the current proposals, leaving as symbolic the current drive for recognition. An analogy is then drawn between this approach and the precedents seen in recent constitutional recognition of Indigenous Australians in some of our sub-national Constitutions (namely in Queensland, New South Wales, Victoria and South Australia).

The analysis in Part III looks at two jurisdictions that share a similar colonial heritage with Australia, namely New Zealand and Canada; and two jurisdictions at the forefront of plurinational constitutional recognition of Indigenous rights (Ecuador and Bolivia). (7) This analysis could provide guidance in the Australian context.


Experience in other countries suggests that constitutional recognition (of Indigenous peoples) occurs in a variety of ways, including the protection and promotion of Indigenous cultures, their land titles and their political representation. This variety, however, stems largely from a common denominator: the need for protecting the political, collective rights of marginalised groups. (8) This protection is generally intended to alleviate Indigenous peoples' economic and social disadvantages.

Given the power dynamic underlying all constitutions, constitutional recognition would invariably have a realpolitik (practical rather than moral) dimension embedded in a field of scalar calculus (qua Indigenous peoples' relative population size). The options available for recognition depend on the size of the Indigenous population as a percentage of total population. As a rule of thumb, the larger the percentage, the wider the constitutional recognition. Australia, with an Indigenous population of around 2.5 per cent of the total population is not likely to secure constitutional recognition as wide (that is, inclined towards legal pluralism) as that in a country like New Zealand (17 per cent) or Ecuador (14 per cent). (9) The same calculus applies in the case of Canada, where the Indigenous population is less than 5 per cent (3.5 per cent) of the total population. (10) The constitutional recognition of Indigenous peoples takes a completely different political dimension (through the democratic process) when the percentage is above 50 per cent, as in the case of Bolivia where the Indigenous population comprises 62 per cent of the total population. (11)

While scalar constraints are significant to questions of constitutional reform and recognition of Indigenous peoples, they only touch on the realpolitik of settler colonial theory, which is even more significant in terms of evaluating the constitutional recognition of Indigenous peoples. Any analytical framing should hence acknowledge that these are also very different types of states. Bolivia and Ecuador are now technically postcolonial, whereas Canada and New Zealand constitute settler colonies. In particular, the analysis cannot avoid engaging with one of the central logics of settler colonialism--that is, 'the logic of elimination'. (12) A degree of focus on the implications of this logic for the models of recognition being assessed and compared adds depth to the analysis. The analytical framework presented in this article captures the colonial influences through a contrast between narrow-dynamic versus wide-static constitutional recognition. The former approach is found in Canada and New Zealand, and attempts to fit the recognition within the jurisdictional mould of the majority, while the latter is situated in a postcolonial Zeitgeist that envisages the legal pluralism seen today in Bolivia and Ecuador. (13)

The above scale implications, on top of a shared British heritage, would suggest following the Canadian approach (to constitutional recognition) in Australia. Notwithstanding, it would behove the Australian debate to learn from the shortcomings of the Canadian approach. The following analysis explains the issues involved and potential mitigation options. First, however, we will take a closer look at the abstract nature of constitutional recognition and its formulation in the Australian context.

A Definition of Constitutional Recognition

The ordinary (dictionary) meaning of the verb 'to recognise' can be broken down into three elements:

  1. to know and remember;

  2. to accept as true and existing; and

  3. to accept and approve of as having legal authority. (14)

Note how the first element of this breakdown corresponds to the past, while the second is locked into continuing existence (the present). The third element is forward looking, basically ensuring that what is being recognised has the power to continue to exist (and hence, reasonably, to also develop) into the future. It follows then that recognition is about accepting the legitimacy and legal authority of what is being recognised (for our purposes, Indigenous peoples). Unfortunately, more often than not, this legal authority comes in the (narrow) form of individual and collective legal rights (that is, legal constructs that limit or enable state action) granted by the 'recogniser' to the 'recognised' party. This is an approach that presupposes a monopoly on legal authority as opposed to an approach versed in legal pluralism.

When the qualifier 'constitutional' is added to the act of 'recognising' legal authority is accepted and approved through political power, a paradigm which heightens the division between the 'recogniser' and the 'recognised'. In the Australian context, constitutional recognition is about accepting as valid the claim or title of Aboriginal and Torres Strait Islander peoples to their heritage, their traditional lands and waters, and, most importantly, their claim for self-determination. (15) Such recognition is intended to further national reconciliation and to guard Australia's reputation internationally vis-a-vis Indigenous Australians' wellbeing. To secure such results, (political) structural protection would be required, probably either in the form of division of powers between the Commonwealth and Indigenous Australians, (16) or in the form of parliamentary seats reserved for Aboriginal peoples at the national and/or sub-national level. (17) A constitutional recognition would see Australia move closer to the position in other former British colonies, including Canada and New Zealand, where the state enters into treaties with Aboriginal peoples to the end of conferring a wider margin of autonomy on them. (18) Under this approach, regional agreements would be negotiated between the Commonwealth and Indigenous regional representative bodies. (19)

It is with this understanding that I now outline current constitutional recognition proposals to gauge their compatibility with the essence of constitutional recognition and the (expected) benefits that would flow from each approach.

B Current Proposals

Current recommendations by the Australian government's Joint Select Committee on Constitutional Recognition of Aboriginal and Torres Strait Islander Peoples (20) and the Expert Panel on...

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