Australia is Recognizing Aboriginals in its Constitution ... I Think

Source: Thriving in the Desert blog

With repatriation of our Constitution in 1982, Canada took the step of ensuring recognition of Aboriginal rights.  With Section 35 of the Constitution Act, the country provided constitutional protection to the existing aboriginal and treaty rights. 

35. (1) The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed.

(2) In this Act, "Aboriginal Peoples of Canada" includes the Indian, Inuit and Métis peoples of Canada.

(3) For greater certainty, in subsection (1) "treaty rights" includes rights that now exist by way of land claims agreements or may be so acquired.

(4) Notwithstanding any other provision of this Act, the aboriginal and treaty rights referred to in subsection (1) are guaranteed equally to male and female persons.

From an energy development point of view, Aboriginal recognition was and is significant because of the string of court cases that followed, establishing an Aboriginal role in the development of natural resources.  In particular, a series of landmark court cases have established the responsibility of the Crown to "consult" with Aboriginal peoples and, where appropriate, accommodate Aboriginal rights or interests when considering development proposals. (A position paper by Weyerhaeuser does a particularly good job of articulating the issues and ways of addressing.)

In practical terms, the Crown's responsibility is frequently effectively handed-off to industry and others proposing to develop resources and rarely does it seem to be done well.  Evolving understandings of what constitutes consultation and how to consult have been huge factors in the complication of regulatory processes for approving projects.

Now Australia seems to be stumbling towards similar accommodation of aboriginal peoples rights and interests (See Coalition to put Aboriginal Recognition to Referendum, August 10^th). 

I say stumbling because, in 2007 John Howard's government committed to holding a referendum on whether the preamble to the Australian Constitution should be changed to explicitly recognize aboriginals.   The promise was then reiterated by Kevin Rudd in 2008. 

Now as a national election approaches, the current Labour government under Julia Gillard has suggested that it would form an expert panel to build support for the constitutional recognition of indigenous people.  And, needless to say, the conservative Coalition thinks it has a better idea.

As indigenous people across remote Australia began casting their votes in mobile polling booths for the federal election on August 21, the Coalition's indigenous affairs spokesman, Nigel Scullion, said there was no need for another committee and he would guarantee a timeline for constitutional recognition to be delivered to Australia's first people.

"We are not only committed to it, we certainly aren't going to flick this very important matter to an expert panel," he said.

"There's been a lot of conversation with the wider community about it. I haven't met anybody who doesn't think it should be reflected in our Constitution and it is down to words and there's not a great deal of angst in the community about the words."

Its hard to see the difference between the two positions beyond a knee-jerk bias against "committees".  Both say they are going to referendum, with Labour suggesting a need to build support among voters, presumably to ensure the issue doesn't blow up in their faces (i.e. get rejected by Australians). 

I wish them luck as they proceed down this path.  Australia has done a lot of interesting work developing innovative regulation and reducing regulatory barriers to development.  I would hope to see some lessons for Canada to come out of this.