A comparative analysis of constitutional recognition of Aboriginal peoples

Gussen, Benjamen Franklen (2017) A comparative analysis of constitutional recognition of Aboriginal peoples. Melbourne University Law Review , 40 (3). pp. 867-904. ISSN 0025-8938

Abstract

This article furnishes a comparative analysis on the constitutional recognition of Indigenous peoples in four jurisdictions. The analysis looks at two jurisdictions that share a similar colonial heritage with Australia, namely New Zealand and Canada; and two jurisdictions at the forefront of plurinational constitutional recognition of Indigenous rights (Ecuador and Bolivia). Experience in these countries suggests that constitutional
recognition (of Indigenous peoples) occurs in a variety of ways, including the protection and promotion of Indigenous cultures, their land titles and their political representation. This variety stems largely from a common denominator: the need for protecting the political, collective rights of marginalised groups. This protection is generally intended to alleviate these groups’ economic and social disadvantages. The analysis identifies two
dimensions for constitutional recognition: a wide-versus narrow dimension and a dynamic-versus-static dimension. Both dimensions break along colonial lines, with
recognition in the two postcolonial countries exhibiting a wide and static approach and recognition in the two plurinational countries exhibiting a narrow but dynamic
approach. These jurisdictions could provide guidance in the Australian context, where resolving the tension between our colonial heritage and our postcolonial aspirations holds the key to alleviating the disadvantages facing Indigenous Australians.


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Item Type: Article (Commonwealth Reporting Category C)
Refereed: Yes
Item Status: Live Archive
Additional Information: Permanent restricted access to Published version, in accordance with the copyright policy of the publisher, but accessible from Publisher's link provided.
Faculty / Department / School: Current - Faculty of Business, Education, Law and Arts - School of Law and Justice
Date Deposited: 15 May 2017 23:47
Last Modified: 19 Apr 2018 04:40
Uncontrolled Keywords: constitutional recognition, Aboriginal peoples, comparative analysis, Australia, Canada, New Zealand, Bolivia, Ecuador
Fields of Research : 18 Law and Legal Studies > 1801 Law > 180108 Constitutional Law
18 Law and Legal Studies > 1899 Other Law and Legal Studies > 189999 Law and Legal Studies not elsewhere classified
18 Law and Legal Studies > 1801 Law > 180101 Aboriginal and Torres Strait Islander Law
18 Law and Legal Studies > 1801 Law > 180106 Comparative Law
Socio-Economic Objective: C Society > 94 Law, Politics and Community Services > 9499 Other Law, Politics and Community Services > 949999 Law, Politics and Community Services not elsewhere classified
C Society > 94 Law, Politics and Community Services > 9402 Government and Politics > 940299 Government and Politics not elsewhere classified
C Society > 94 Law, Politics and Community Services > 9402 Government and Politics > 940203 Political Systems
URI: http://eprints.usq.edu.au/id/eprint/32371

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