Indigenous Lands and Constitutional Reform in Australia: A Canadian Comparison
Australian Indigenous Law Review, 15 2: 87-106
Posted: 26 Jun 2015
Date Written: 2011
With a sentiment currently growing in Australia that the Constitution requires updating to echo the actuality of Australia in the 21st century, it is timely to reflect on the constitutional recognition of the rights of the Aboriginal and Torres Strait Islander peoples. Recognition of Aboriginal and Torres Strait Islander peoples in Australia's Constitution will provide the foundation for their future participation in the Australian nation. At present, no constitutional protection is afforded to the rights (including land rights) of the Aboriginal and Torres Strait Islander peoples in the Australian constitution. The are of recognition and protection which I will focus in this paper is that in relation to Indigenous rights and title to land. Various forms of recognition and purported protection for Indigenous rights have been included in various nations' constitutions around the world. One constitutional model that has been judicially interpreted as affording recognition and protection of Aboriginal rights to land is that contained in Part 11 of the Canadian Constitution Act 1982. It is this model that I will examine, so as to determine the appropriateness of adopting a version of it in the Australian context.
JEL Classification: K00
Suggested Citation: Suggested Citation