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

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