Rights-based 'recognition': the Canadian experience

Rights-based 'recognition': the Canadian experience

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.

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