Rights-based 'recognition': the Canadian experience

Edited book (chapter)


Mascher, Sharon and Young, Simon. 2016. "Rights-based 'recognition': the Canadian experience." Young, Simon, Nielsen, Jennifer and Patrick, Jeremy (ed.) Constitutional recognition of first peoples in Australia - theories and comparative perspectives. Leichhardt, NSW, Australia. Federation Press. pp. 176-205
Chapter Title

Rights-based 'recognition': the Canadian experience

Book Chapter CategoryEdited book (chapter)
ERA Publisher ID1891
Book TitleConstitutional recognition of first peoples in Australia - theories and comparative perspectives
AuthorsMascher, Sharon (Author) and Young, Simon (Author)
EditorsYoung, Simon, Nielsen, Jennifer and Patrick, Jeremy
Page Range176-205
Chapter Number10
Number of Pages30
Year2016
PublisherFederation Press
Place of PublicationLeichhardt, NSW, Australia
ISBN9781760020781
Web Address (URL)http://www.federationpress.com.au/bookstore/book.asp?isbn=9781760020781
Abstract

Comparative study often provides an unexpectedly rich vein of insight in the field of Indigenous law and policy. The lessons can be elusive, often buried in contextual difference, but Australia’s wavering progress on the Constitutional recognition of Indigenous peoples provides a context in which further, tenacious comparative inquiry might prove useful.
Canada is an obvious, but imperfect comparator in this context. It is imperfect because the 1982 constitutional recognition of Aboriginal and treaty rights in Canada was in legal terms a very different initiative to that being considered in Australia. Here, such a ‘rights-based’ approach to constitutional recognition has been carefully and fearfully evaded. Certainly a Canadian style formula would be unlikely to make it through the notoriously narrow gate of Australian constitutional reform.
Yet the Canada-Australia constitutional comparison is still a valuable one. The Canadian wording is not the only rights-based formula that might present itself, and in any event the Canadian experience is a striking one from the perspective of any observer. Indeed the scale of the Canadian endeavour perhaps helps to put the increasingly modest Australian efforts in perspective. Moreover, whatever the jurisdictional variances, in developed and responsible nations differences in the treatment of Indigenous peoples demand rather than preclude comparison.
Yet there is a more constructive element to the comparison to be undertaken here. The constitutional reform in Canada has led to some interesting and unexpected places - initially a somewhat utilitarian notion of ‘reconciliation’ and some conspicuous fresh interplay of law and politics, but also a renewed focus on fiduciary-type government obligations and a strengthening framework of consultation and consent. It is an interesting story for intending constitutional travellers. Its unexpected turns confirm the lesson from our own 1967 reform initiatives that large visions can be unpredictable in operation. But more importantly, we in Australia can perhaps deliberately point ourselves, by whatever means we can, to the best of the paths that Canada has found. These are paths that appear to be leading Canada to a growing consensus and institutional balance.

Keywordsconstitutional law; comparative law; Indigenous law and policy; recognition of Indigenous Peoples; Canadian law; Indigenous rights; first nations rights; native title; Aboriginal title; Aboriginal rights
ANZSRC Field of Research 2020480702. Constitutional law
450107. Aboriginal and Torres Strait Islander history
489999. Other law and legal studies not elsewhere classified
430321. North American history
450599. Aboriginal and Torres Strait Islander peoples, society and community not elsewhere classified
480302. Comparative law
480499. Law in context not elsewhere classified
Public Notes

Files associated with this item cannot be displayed due to copyright restrictions.

Byline AffiliationsUniversity of Calgary, Canada
School of Law and Justice
Institution of OriginUniversity of Southern Queensland
Permalink -

https://research.usq.edu.au/item/q3v65/rights-based-recognition-the-canadian-experience

  • 1574
    total views
  • 21
    total downloads
  • 1
    views this month
  • 0
    downloads this month

Export as

Related outputs

Indigenous Rights in Freshwater: Mapping the Contested Space in Australia, New Zealand and Canada
Young, Simon, Down, Sarah and Mascher, Sharon. 2023. "Indigenous Rights in Freshwater: Mapping the Contested Space in Australia, New Zealand and Canada." Environmental and Planning Law Journal. 39 (3), pp. 276-301.
The Blue Sky Effect: a repatriation of judicial review or a search for flexibility?
Young, Simon. 2020. "The Blue Sky Effect: a repatriation of judicial review or a search for flexibility?" Australian Journal of Administrative Law. 27 (3), pp. 165-179.
Transparent triage policies during the COVID-19 pandemic: a critical part of medico-legal risk management for clinicians
Close, Eliana, Willmott, Lindy, Cockburn, Tina, Young, Simon, Cairns, Will and White, Ben P.. 2021. "Transparent triage policies during the COVID-19 pandemic: a critical part of medico-legal risk management for clinicians." Medical Journal of Australia. 215 (2), pp. 71-74.e1. https://doi.org/10.5694/mja2.51079
Legal challenges to ICU triage decisions in the COVID-19 pandemic: How effectively does the law regulate bedside rationing decisions in Australia?
Close, Eliana, Young, Simon, Cockburn, Tina, Willmott, Lindy and White, Ben P.. 2021. "Legal challenges to ICU triage decisions in the COVID-19 pandemic: How effectively does the law regulate bedside rationing decisions in Australia?" University of New South Wales Law Journal. 44 (1), pp. 9-59. https://doi.org/10.53637/FSJG1698
If COVID hospitalisations increase, it’s still not clear how patients will be prioritised for ICU beds
Close, Eliana, White, Ben, Willmott, Lindy, Young, Simon, Cockburn, Tina and Cairns, Will. 2021. "If COVID hospitalisations increase, it’s still not clear how patients will be prioritised for ICU beds." The Conversation. 27 October 2021, pp. 1-4.
Commentary: members of the Yorta Yorta Aboriginal Community v Victoria (2002) 214 CLR 422
Young, Simon. 2021. "Commentary: members of the Yorta Yorta Aboriginal Community v Victoria (2002) 214 CLR 422." Watson, Nicole and Douglas, Heather (ed.) Indigenous legal judgments: bringing Indigenous voices into judicial decision making. Abingdon, Oxon, United Kingdom. Routledge. pp. 92-96
The 'Blue Sky effect': a repatriation of judicial review grounds or a search for flexibility?
Young, Simon. 2020. "The 'Blue Sky effect': a repatriation of judicial review grounds or a search for flexibility?" AIAL Forum. 2020 (98), pp. 54-69.
Constitutional promises of Indigenous recognition: Canada, Vanuatu and the challenges of pluralism
Corrin, Jennifer and Young, Simon. 2019. "Constitutional promises of Indigenous recognition: Canada, Vanuatu and the challenges of pluralism." Common Law World Review. 48 (4), pp. 233-265. https://doi.org/10.1177/1473779519891623
The increments of justice: exploring the outer reach of Akiba's edge towards native title 'ownership'
Young, Simon. 2019. "The increments of justice: exploring the outer reach of Akiba's edge towards native title 'ownership'." University of New South Wales Law Journal. 42 (3), pp. 825-868. https://doi.org/10.53637/PZOJ4201
'The difficulties of communication encountered by Indigenous peoples’: moving beyond Indigenous deficit in the model admission rules for legal practitioners
Burns, Marcelle, Young, Simon and Nielsen, Jennifer. 2018. "'The difficulties of communication encountered by Indigenous peoples’: moving beyond Indigenous deficit in the model admission rules for legal practitioners." Legal Education Review. 28 (2), pp. 1-27.
The evolution of bias: spectrums, species and the weary lay observer
Young, Simon. 2017. "The evolution of bias: spectrums, species and the weary lay observer." Melbourne University Law Review. 41 (2), pp. 928-956.
From the bike to the bus: the Noongar Native Title settlement
Young, Simon. 2013. "From the bike to the bus: the Noongar Native Title settlement." Native Title Newsletter.
The troubled sequel: Canadian aboriginal title revisited in the BC Court of Appeal
Young, Simon. 2012. "The troubled sequel: Canadian aboriginal title revisited in the BC Court of Appeal." Australian Property Law Bulletin. 26 (10), pp. 147-150.
Synergy or skirmish? The collaboration of law and anthropology
Young, Simon. 2016. "Synergy or skirmish? The collaboration of law and anthropology." Bright, Susan and Blandy, Sarah (ed.) Researching property law. London, United Kingdom. Palgrave Macmillan. pp. 145-163
A climate for change? The 2009 Native Title report
Young, Simon. 2010. "A climate for change? The 2009 Native Title report." Indigenous Law Bulletin. 7 (18), pp. 20-24.
Privative clauses: politics, legality and the constitutional dimension
Young, Simon. 2014. "Privative clauses: politics, legality and the constitutional dimension." Groves, Matthew (ed.) Modern administrative law in Australia: concepts and context. Port Melbourne. Cambridge University Press. pp. 276-297
Law and anthropology: the unhappy marriage?
Young, Simon. 2014. "Law and anthropology: the unhappy marriage?" Property Law Review. 2014 (3), pp. 236-246.
The trouble with tradition: native title and cultural change
Young, Simon. 2008. The trouble with tradition: native title and cultural change. Sydney, Australia. Federation Press.
Administrative law in Australia
Lane, W. B. and Young, Simon. 2007. Administrative law in Australia. Sydney, Australia. Lawbook Co..
Cultural timelessness and colonial tethers: Australian native title in historical and comparative perspective
Young, Simon. 2008. "Cultural timelessness and colonial tethers: Australian native title in historical and comparative perspective." Australian Indigenous Law Review. 12, pp. 60-68.
Law and custom - 'Tradition': the assembly of a legal microscope [submitted to Australian Law Reform Commission]
Young, Simon. 2009. Law and custom - 'Tradition': the assembly of a legal microscope [submitted to Australian Law Reform Commission]. Unpublished.
Native title in Canada and Australia post Tsilhqot'in: shared thinking or ships in the night?
Young, Simon. 2009. "Native title in Canada and Australia post Tsilhqot'in: shared thinking or ships in the night?" Land, Rights, Laws: Issues of Native Title. 4 (2), pp. 1-16.
Probing the frontiers of administrative law
Johnston, Peter, Young, Simon, Hooker, Richard and Pontre, Tom. 2011. "Probing the frontiers of administrative law." ALIAL Forum. 67, pp. 1-34.
An elegant convergence? The constitutional entrenchment of 'jurisdictional error' review in Australia
Young, Simon and Murray, Sarah. 2011. "An elegant convergence? The constitutional entrenchment of 'jurisdictional error' review in Australia." Oxford University Commonwealth Law Journal. 11 (2), pp. 117-142.
Tides of history and jurisprudential gulfs: Native title proof and the Noongar Western Australia claim
Young, Simon. 2010. "Tides of history and jurisprudential gulfs: Native title proof and the Noongar Western Australia claim." Indigenous Law Journal. 8 (1), pp. 95-120.
One step forward and one step back: the Noongar South-West Native Title Claim
Young, Simon. 2008. "One step forward and one step back: the Noongar South-West Native Title Claim." Australian Property Law Bulletin. 23 (2), pp. 14-17.