Constitutional Recognition of Australia's Indigenous Peoples: Law, History and Politics
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CONSTITUTIONAL RECOGNITION OF AUSTRALIA’S INDIGENOUS PEOPLES: LAW, HISTORY AND POLITICS Dylan Lino January 2017 Melbourne Law School, University of Melbourne Submitted in total fulfilment of the requirements of the degree of Doctor of Philosophy ORCID Identifier: 0000-0003-1715-8130 Abstract When Australians today debate the terms of political association between the peoples indigenous to the Australian continent – the Aboriginal and Torres Strait Islander peoples – and those who have colonised it, they frequently do so using the language of ‘constitutional recognition’. Within the past decade, constitutionally recognising Indigenous peoples has emerged as the leading idea for achieving a just postcolonial settlement in Australia. In academic and broader debates, however, there is little clarity about what exactly ‘constitutional recognition’ is and what it can be expected to achieve. This thesis examines Indigenous constitutional recognition in historical and theoretical perspective, analysing the period from the 1960s to the present. Viewed historically, Indigenous ‘recognition’ is, the thesis argues, an indeterminate, malleable language of Australian constitutional politics, used by Indigenous and non-Indigenous actors over the past four decades to serve diverse political projects. Drawing on political and constitutional theory, the thesis argues that Indigenous peoples’ struggles over constitutional recognition seek a settler constitutional order that better respects their identities. These struggles target the basic distribution of public power, not only within written, ‘big-C’ Constitutions but also within ‘small-c’ constitutional norms. The thesis then applies this theoretical account to understand Indigenous constitutional recognition in practice. The central argument is that new forms of recognition are limited by the horizons of politics and identity in which they are negotiated, and are subject to an uncertain future in which their implementation can go in different directions. The thesis reinterprets earlier Indigenous battles over citizenship – the 1967 amendments to the Australian Constitution and the passage of the Racial Discrimination Act 1975 (Cth) – as unappreciated instances of Indigenous constitutional recognition. Flawed and incomplete from the outset, these older forms of recognition have become increasingly inadequate over time, especially as Indigenous politics has shifted from an emphasis on Australian citizenship to Indigenous peoplehood. Turning to contemporary Indigenous struggles for constitutional recognition as peoples, the thesis proposes federalism as a valuable way of understanding and advancing these Indigenous demands. But cautioning against seeing Indigenous–settler federalism as a constitutional endpoint, the thesis concludes that Indigenous constitutional recognition should be understood as an ongoing process of contesting the settler constitutional order in the name of a just postcolonial relationship. i Declaration This thesis comprises only original work toward the degree of Doctor of Philosophy. Due acknowledgement has been made in the text to all other material used. The thesis is fewer than 100 000 words in length, exclusive of tables and bibliography. Signed: Dylan Lino 30 January 2017 ii Acknowledgements I grew up on Bundjalung country without realising it. That sort of unawareness isn’t an uncommon experience among settler Australians. By contrast, for Aboriginal and Torres Strait Islander people, that they live in a settler-colonial country is a basic, unavoidable fact of existence. The process of writing this thesis over the past five-and-more years has been an exercise – not simply intellectual but also personal – in grappling with and seeking to transcend the colonial past and present that we’ve all inherited. It’s been written primarily on Wurundjeri country (Melbourne), Wampanoag country (Cambridge, United States) and Noongar country (Perth). From the following pages, it should be clear that the biggest intellectual inspiration for this thesis is the brilliant Megan Davis. Employer, teacher, supervisor, collaborator, wedding guest: Megan has been all of these things to me in the decade since we first met. The ideas that became this thesis were spurred by research that Megan and I began in 2010 at the Indigenous Law Centre, University of New South Wales, and have since been developed in conversation with Megan and her writings. She showed extraordinary graciousness in supporting my spreading of wings in Melbourne and incredible generosity in agreeing to supervise the project externally. Megan’s fingerprints are all over this thesis. She is my greatest mentor, one of my biggest champions and a very dear friend. Or as Megan would have it: friend first, boss second. Probably entertainer third. Others at UNSW have also been vital sources of edification from my formative years of Becoming an Academic. Since 2007, when he gave me special permission to take his course on native title, Sean Brennan has been for me a constant paragon of how to be a teacher and scholar committed to social justice, especially in Indigenous–settler legal relations. I strive to follow his example (if only managing a pale imitation) in my teaching and scholarship, and treasure his ongoing support. Another wonderful exemplar from my alma mater is Rosalind Dixon, an unfailingly generous contributor to my intellectual and professional development for many years. Gary Edmond offered invaluable early advice and encouragement for pursuing an academic career. Conversations with Leon Terrill and George Williams on various aspects of this thesis have been helpful. The Indigenous Law Centre has been a crucible of my development as a scholar and has provided important financial support over the years. iii Following my move to Melbourne Law School, Adrienne Stone and Cheryl Saunders – originally for me just towering figures – have become inspirational, unstintingly supportive mentors who’ve made Melbourne my second academic home. As joint doctoral supervisors in practice if not on paper, they’ve pressed my ideas in all the places they needed to be pressed, which were many indeed, while being open to my pursuit of my own approaches. Adrienne’s daunting capacity to pinpoint problems of methodology, argument and execution in any piece of scholarship has been a boon to each and every part of this thesis. The project has likewise benefited extraordinarily from Cheryl’s boundless intellectual engagement and unparalleled breadth and depth of comparative constitutional insight. Much life has happened to each of us throughout this PhD, and throughout both Adrienne and Cheryl have been sources of continuous and countless forms of support, including in my moves to the United States and Perth. Under their guidance, the project has transmogrified since its inception, in the best possible ways. Melbourne became an intellectual home – and a home tout court – thanks to many others as well. My first and greatest debt is to Jiab and Suwan Adamson, who took me into their home as a New South Wales castaway and made me a proud Footscrayite and an honorary Adamson. Like all debts to family, this is one I feel I can never repay. Immense gratitude for the conversation, solidarity and friendship goes to my PhD fellow travellers, especially Tsegaye Ararssa, Adrian Aronsson-Storrier, Marie Aronsson- Storrier, Maddy Chiam, Monique Cormier, Julia Dehm, Sara Dehm, Anna Dziedzic, Maria Elander, Bec Goodbourn, Tim Neale, Josh Paine, Darren Parker, Sophie Rigney and Cait Storr. Thanks are also due to faculty members at Melbourne who’ve generously assisted my project at various stages – in particular, Michael Crommelin, Anne Genovese, Lee Godden, Kirsty Gover, Coel Kirkby, Mark McMillan and Peter Rush. The staff at the Law School’s Office for Research have been ever accommodating and patient. I’m extremely grateful to the Law School for financially supporting me with an Australian Postgraduate Award and a Teaching Fellowship, and to the University of Melbourne for an Overseas Research Experience Scholarship. I was lucky enough to spend two-and-a-half years at Harvard Law School, first and last as a Visiting Researcher and as a Master’s student in the middle. It became, in the process, yet another place to call home. Enormous thanks go to Vicki Jackson for supporting my first research visit and for valuable conversations about my research. My second research visit was supported by Sam Moyn, whose scholarship and example I iv greatly admire and whose ongoing mentorship I prize. David Armitage was kind enough to let me audit his course on intellectual history and reassured me of intellectual history’s value for my project. The dedicated staff at the Law School’s Graduate Program were always supportive, including in taking me on for a second research visit and as a Graduate Program Fellow. Uri Ben-David, Oren Tamir and Yotam Zeira were and remain wellsprings of encouragement and friendship. Considerable gratitude goes to the American Australian Association, whose financial assistance through a Qantas Fellowship made my final year at Harvard possible. I’m now happily in the process of making a new home at the University of Western Australia Law School. I feel incredibly fortunate for the Law School’s willingness to take me on before submitting my PhD, and I’m grateful for the welcoming and supportive environment it’s been during these final stages. Special thanks go to Harry Blagg, Ambelin Kwaymullina, Sarah Murray, Erika Techera and Tamara Tulich.