Towards Indigenous–Settler Federalism

Abstract

For more than a decade, Australians have been debating whether and how to ‘constitutionally recognise’ the continent’s first peoples, the Aboriginal and Torres Strait Islander peoples. As these debates have evolved, Indigenous people have increasingly demanded that their identities as peoples be better recognised. The claims of Indigenous peoplehood, with their internationalist dimensions, present both a conceptual challenge – of reconciling Indigenous peoplehood with an ongoing Indigenous–settler constitutional association – and a justificatory challenge – of justifying the recognition of Indigenous peoplehood within Australia’s liberal–democratic constitutional traditions. This article argues that federalism, understood as self-rule combined with shared rule, provides a way of conceptualising and justifying the recognition of Indigenous peoplehood that falls between settler and Indigenous traditions. The article also shows how three major contemporary proposals to recognise Indigenous peoplehood – Indigenous parliamentary representation, treaties and the establishment of Indigenous States and Territories – can all be productively understood in federal terms.

Keywords: federalism, Indigenous peoples, constitutional law, constitutional recognition, treaty, Australia