What Is Constitutional Recognition of Aboriginal and Torres Strait Islander Peoples?

Abstract

‘Constitutional recognition’ has emerged as a dominant language through which Australians now debate what is owed to Aboriginal and Torres Strait Islander peoples by the settler state. But what is it? There are different ways of answering that question, depending on the goal. If one’s goal is to support a particular political project — be it legal reform, nation-building, Indigenous empowerment, conservative resistance or some combination — then one will simply adopt an account of constitutional recognition to suit that project. But a different methodology is needed where the goal is to understand constitutional recognition as a social, political and legal phenomenon. In this article, my goal is to understand rather than to advocate. I begin by exploring two different approaches to understanding constitutional recognition: first, through a brief survey of how, and to what ends, the idea has been used in Australian policy and debate; and second, through a theoretical study of the concept of constitutional recognition. I then attempt to bring these two approaches together, showing how the theory provides a clarifying framework for thinking about the politics of Indigenous constitutional recognition in Australia.

Keywords: Indigenous peoples, constitutional recognition, politics of recognition, Australia, treaty