The inherent right of aboriginal self-government in Australia
University of British Columbia
Master of Laws - LLM
The relationship between Aboriginal peoples and the rest of contemporary Australian society is bittersweet. While Australians have embraced some aspects of Aboriginal culture - especially in art and sport - governments and the courts cling stubbornly to colonial attitudes when it comes to matters of justice and civil and political rights. The failure to recognise and give effect to Aboriginal rights has contributed to a significant power imbalance between Aboriginal people and the wider Australian society. This imbalance is manifest in a lack of education, employment and healthcare options for Aboriginal people and in the overrepresentation of Aboriginal people in the criminal justice system. One way to address this power imbalance is to recognise and protect a greater measure of Aboriginal self-government. However, the concept of self-government has an extremely low profile in Australia. It is not a matter of current government policy and the courts have only dealt with self-government as a peripheral aspect of native title. I consider the question of whether there is a common law right of self-government in Australia. I look to Canadian aboriginal rights jurisprudence to inform the development and recognition of a common law doctrine of self-government in Australia. As soon as one looks beyond the rhetoric of legal positivism and analyses the case law in its historical context, it becomes apparent that the inherent right of self-government existed as part of the colonial common law imported into Australia. Importantly, the inherent right of self-government continues to form part of Australian common law. The inherent right of self-government must be recognised. This is crucial, not only to address the significant power imbalance that exists in Australia today, but also to maintain the conceptual integrity of the Australian legal system.
Law, Peter A. Allard School of