A comparative analysis of constitutional recognition of Aboriginal peoples

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