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

31 Pages Posted: 17 Jan 2013

See all articles by Dylan Lino

Dylan Lino

University of Queensland - T.C. Beirne School of Law

Date Written: January 16, 2013

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

Suggested Citation

Lino, Dylan, The Politics of Inclusion: The Right of Self-Determination, Statutory Bills of Rights and Indigenous Peoples (January 16, 2013). Melbourne Univeristy Law Review, Vol. 34, No. 3, 2010. Available at SSRN: https://ssrn.com/abstract=2202023

Dylan Lino (Contact Author)

University of Queensland - T.C. Beirne School of Law ( email )

Forgan Smith Building (1)
The University of Queensland
St Lucia, Queensland 4072
Australia

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