The Politics of Inclusion: The Right of Self-Determination, Statutory Bills of Rights and Indigenous Peoples

Abstract

Two relatively recent and overlapping developments potentially offer a new direction for the Indigenous self-determination project, which has been marginalised by Australian governments in recent years: first, the trend towards the domestic protection of international human rights through statutory bills of rights in Australian jurisdictions; and second, the burgeoning recognition of the right of self-determination for Indigenous peoples at the level of international law. This paper critiques the right of self-determination as it would operate under the kind of statutory bill of rights that predominates in Australia. The central argument is that enshrining the right of self-determination in a statutory bill of rights would be an ineffective guarantee of Indigenous self-determination. After developing a normative account of Indigenous self-determination that emphasises the importance of the Indigenous-state relationship, this paper suggests that two things are problematic for Indigenous self-determination in the statutory bill of rights context. The first concerns the standard consultation processes leading up to the introduction of statutory bills of rights; the second concerns the unilateral state control that would exist over the right of self-determination under a statutory bill. This paper concludes with a discussion of the problem of ‘juridification’ in relation to Indigenous self-determination.

Keywords: statutory bills of rights, self-determination, Indigenous peoples, Australia