Constitutional Protection of Aboriginal Rights in Canada vs in Australia - Essay Example

Constitutional protection of Aboriginal rights in Canada verses protection of the Aboriginal rights in Australia The aboriginal community or the first people have special concerns that their governments should protect. Available literature indicates that countries with the indigenous population have entrenched special clauses or chapters in their constitution, which deals with the rights of these people. These are attempts aimed at recognizing the rights of this group on the principal of equality and consent. Various political developments in Australian in the recent past have addressed the needs of the indigenous community. A comparative view on the constitutional dispensation in Canada indicate that the Canadian government has demonstrated interest in creating clauses that would not only promote the rights of the aboriginals, but also group them under a special category which would enable the community to enjoy government protection. In a bid to illustrate the involvement of various governments in protecting the rights of aboriginals, the paper would compare the constitutional protection of the aboriginal rights in Canada and Australia. Both Australian constitution and Canadian constitution recognizes the aboriginal community and the Torres Straight Islanders. This step is critical in strengthening the rights of the aboriginal community in the two countries. However, the constitution of respective countries seems to project or define the extent of protection that it can provide to the aboriginal community. For instance, in both cases, the constitution of the two countries stipulates that it will promote the culture and tradition of the aboriginal community in the present time and in the future. According to the provision of this clause, the constitution defines the protection of the cultural activities of the aboriginal community (Uribe, 2004:1-18). The cultural right includes indigenous practices and traditions that are synonymous with the indigenous community. The enactment of the section 35(1), Constitutional Act 1982 of the Canadian constitution does not only recognize, but also affirms the existence of the aboriginal treaty rights. The Supreme Court decision in the sparrow case indicated that the section 35(1) has set new dimension of protecting the rights of the aboriginals. Available literature indicates that it supersedes the colonial landmarks, which barred the Canadian aboriginal from some fundamental rights (Uribe, 2004:1-18). On the contrary, the Australian constitution fails to demonstrate the protection of the Indigenous rights. The Kruger’s case is one of the historical instances where the protection of the indigenous rights by the Australian constitution did not merit (Castan, 2011: 12-17). In the case, the plaintiff contested the constitutionality of Northern Territory Ordinance that empowered Australian authorities to snatch indigenous children from their parents as well as detention of the indigenous people on reserves known as welfare ground. The high court ruling rejected the submission of the plaintiff arguing that it was not able to rely on the constitution on protecting the civil and religious rights of the indigenous community. In this sense, the Australian constitution has been impartial in protecting the right of the aboriginal community. Race power v First Nation’s Law The Australian constitution has a provision for race power, which directly affect the interest as well as the activities of the indigenous community whereas the Canadian constitution does not elicit such a clause. According to the provision of the Race Power as provided in the commonwealth laws, the provision allows the country to make laws for a particular race especially laws that would be beneficial to the special interest groups (Law Council of Australia. 2011: 7-33). A close examination of the ruling of the Australian High Court on a case bordering on the provisions of race power indicates that the Australian government has been adamant in protecting the indigenous race. For instance, in 1997, the Hindmarsh Island Bridge Act 1997, passed by the Australian parliament exposed the Ngarrindjeri people to relocation as opposed to protection of their cultural land (Massey, 1990:1229-1310). The provision of this law diluted the provisions of the Heritage Protection Act, which enabled the indigenous community to settle and practice their heritage in the contested lands. The court ruled in favor of the government and the indigenous community had to lose their land for the construction of the tourism site. First Nation’s Law The First Nation’s Law is a provision entrenched in the Canadian constitution and it entitles the Aboriginal community to use it in solving disputes. The provisions of the law dictate that the Aboriginal community should solve their disputes using the First Nation’s Law (Urube, 2004:12-18). Available literatures show that the First Nation’s Law sought to protect the spiritual, social, and the political customs of the Aboriginal community. This law traces its sources in the British and U. S. Federal laws, which sought to protect the interest of the marginalized communities. In spite of the entrenchment of the First Nation’s Law in the Canadian constitution, a number of cases indicate that the Canadian government have failed or ignored the provision of this law in one way or the other (Morgan, 1984:39-56). The fight by the Sioui community to receive recognition as the first community in Quebec has faced various challenges (Uribe, 2004:1-18). Similarly, the Australian aboriginals have expressed special concerns to the government demanding the observation of laws provided in the common wealth laws that protect the interest of the Aboriginal community. Charlottetown Accord v Native Title Amendment Act 1998 The Canadian constitution rejected the consideration of the Charlottetown accord, which argued in favor of the aboriginals. According to the accord, the aboriginal sought to govern themselves as well as creating a state, which recognized the Aboriginal interest. On the other hand, the Native Title Amendment Act 1998 of the Australian constitution created a provision for settling in lands, which the indigenous community feel belonged or had been their reserve (Wilkins, 1992:40-64). The creation of legislation that would protect the interest of the aboriginal community in both countries has undergone a myriad of challenges. Critics argue that failure of the Charlottetown Accord is an indication of inadequacy in the Canadian constitution in protecting the indigenous people (Castan, 2011: 12-17). At the same time, the enactment of the Native Land Title Act 1998 created a room for land ownership in regions perceived to be reserves or heritage land for the Aboriginal community in Australia. The contention of the act borders on its ability especially in promoting equitable land distribution while ignoring the marginalization of the indigenous community. In both countries, their courts have failed to grant special law considerations when handling the cases of the indigenous people. In Australia, for instance, the ruling of High Court Judge Kirby in the case Falbo v United States, the judge indicated that the law does the court would not grant special interest to persons who feel their cases should attract special considerations based on their races (Castan, 2011: 12-17). In this sense, the court failed to grant special consideration to Aboriginals when handling their case. The Canadian aboriginals have experienced similar trends especially when the court ignores the call for the observance of the First Nation’s Law. The essence of the indigenous protection is to recognize the special conditions that influence their lives. The Australian constitution for a long time did not entrench the rights of the indigenous community until 1967 referendum, on the other hand, the Canadian constitution had entrenched the rights of the aboriginal community many decades ago (Morgan, 1984:39-56). The major challenge that the two countries seems to share is the implementation of various sections or chapters of the constitution, which call for special attention to the indigenous community. Decisions made in high court or the supreme court of either country has attracted criticism from critics. Some of the criticism point on the failure of the judges to grant the constitutional rights of the aboriginal community (Blackburn, 2007:621-638). Land rights in Canada v land rights in Australia The Canadian aboriginals do not have the outright ownership of land; instead, the Canadian government reserves the right to restrict the land ownership whereas the Australian indigenous can own land through communal ownership. According to Foster, Haven and Webber (183) the Australian aboriginal have gained access to land ownership through the Aboriginal Land Rights Act 1976 (Northern Territory) (Castan, 2011: 12-17). The provision is this act enables the aboriginal community to challenge the ownership of land that they can prove to have been theirs. Contrary to the land rights in Canada, the government does not reserve the authority to control the distribution of the aboriginals in their given land. The legislation of the land rights in Australia has created an opportunity for the Australian indigenous to control the Northern territory (Kelly, 2001:321-325). Notable land case in Canada is the Calder et.al. v B.C. attorney general (1973). In this case, the plaintiff filed a legal suit with B.C. government arguing the ownership of Nisga’a land around the Nass River Valley (Wilkins, 1992:40-64). The court ruled in favored of the British Colombian government. However, the court acknowledged the existence of the aboriginal land prior to the colonial period. In another example, the Australian high court granted the ownership of the Northern territory to the indigenous community after it proved to the court that the land belonged to it. Notably, the case filed by the Canadian aboriginal tends to suggest that the Australian government reserve the right to adjudicate the land reserved for the aboriginal community. Aboriginal Treaty Rights Both Canadian and the Australian constitution recognize the existence of aboriginal treaties. A number of cases affecting aboriginal community have often received varied judgment depending on the existing treaties. In some instances, the court may overlook the exiting treaty or acknowledge the treaty. In Canada, for instance, the case, R v Sparrow (1990) displays the observance of the section 35(1) of the Canadian constitution, which affirms the existence of the aboriginal treaty rights. In this case, the accused, Ronald Edward Sparrow violated the fisheries regulations. In defense to the charge, Sparrow indicated that he belonged to the aboriginal community and was not subject to the fisheries regulation. The court ruled in favor of Sparrow citing the aboriginal treaties in the section 35 (1) of the constitution. On the other hand, section 35 (1) of the Australian constitution recognizes the aboriginal treaties but the court reserves the right to interpretation. Some critics have elicited arguments, which project inadequacies of the Australian courts in granting judgment, which favor aboriginal treaties (Wilkins, 1992:40-64). Notably, in the above case, the two countries have entrenched clauses in the constitution, which dictates the observance of the aboriginal treaties in deciding cases affecting the aboriginals. Aboriginal Voting Rights The constitutional provisions for voting rights for aboriginals in Australia seems to be different from the voting rights in Canada. The voting process provides an opportunity for the citizens to demonstrate their choice of leadership. Available literature indicates that the Australian aboriginals did not have the right to vote until 1962 when the parliament enacted the commonwealth electoral act (Borrows, 2010:125-140). The act paved way for the aboriginals to vote. However, the rolling or the registering of the aboriginal voters took place in 1965 when the every aboriginal got the opportunity to vote (Castan, 2011: 12-17). In addition, the Australian aboriginals often participate in voting after every three years when they elect their representatives. On the other hand, the Canadian aboriginals have been playing a critical role as voters. The Canadian constitution entrenches unconditional right to vote. In the past 50 years, the Canadian aboriginals have been voting. However, the voter turnout of the aboriginal community is less, compared to the non-aboriginal community. Critics believe that the voting rights of the aboriginal community has made the politicians and elites seeking power to consolidate support or ask the aboriginal support in their quest for votes. Rights against discrimination Both Australian and the Canadian constitution have provisions that denounce discrimination in terms of race, color, or sex. Some scholarship indicate that Australian aboriginal have experienced discrimination in the past decades. Notable discriminatory events include the Kruger’s case, which elicited open discrimination against the aboriginal community. Discrimination is a broad concept, which transcends many disciplines. However, numerous reforms have taken place absolving the aboriginal community from discrimination. On the other hand, the Canadian constitution has provisions, which protect the aboriginal community from discrimination. According to the provisions of the Canadian constitution, aboriginal community stands a similar opportunity as non-aboriginal community (Uribe, 2004:1-18). The Canadian government has demonstrated that it does not only uphold, but also value the rights of the aboriginal community. The use of the First Nation Law in some instances predisposes the aboriginal community to just practice. In conclusion, Canada and Australia have demonstrated concerns in protecting the rights of the aboriginal. Historical evidences reviewed in this work have indicated various approaches or perspectives employed by these countries in protecting the rights of the aboriginals. Some of the notable rights explored include the existing treaty rights, land rights, discrimination rights and many more. However, in some instances the governments of the two countries have made decisions, which undermine the advancement of the aboriginal rights. Some of the court contests have elicited mixed reaction concerning the interpretation of the constitution concerning a specific right. Bibliography R v Sparrow (1990), 104 SCC (1) SCR 1075 (available on CanLII), (BC CA) [aboriginal rights]. Secondary Sources: “Chapter Seven: Aboriginal Rights,” Penn State Law, (January 24, 2013, http://law.psu.edu/_file/Ross/Chapter_Seven.pd Blackburn, Carole. "Producing Legitimacy: Reconciliation and the Negotiation of Aboriginal Rights in Canada." The Journal of the Royal Anthropological Institute, (September, 2007) 621-638. Kelly, James B. "Reconciling Rights and Federalism during Review of the Charter of Rights and Freedoms: The Supreme Court of Canada and the Centralization Thesis, 1982 to 1999." Canadian Journal of Political Science, (Jun., 2001) 321-355. Massey, Calvin R. "The Locus of Sovereignty: Judicial Review, Legislative Supremacy, and Federalism in the Constitutional Traditions of Canada and the United States." Duke Law Journal, (December, 1990) 1229-1310. Morgan, Edward M. "Self-Government and the Constitution: A Comparative Look at Native Canadians and American Indians." University of Oklahoma College of Law, (1984) 39-56. Wilkins, David. "Whos in Charge of U.S. Indian Policy? Congress and the Supreme Court at Loggerheads over American Indian Religious Freedom." University of Minnesota Press, (1992) 40-64. Castan, Melissa. “Constitutional Deficiencies in the Protection of the Indigenous rights. Indigenous Law Bulletin (2011). 12-17. Uribe, Julieta. A Study on the relationship between Canadian Aboriginal Peoples and the Canadian State. Focal Policy Paper. 2004. 1-18. “Aboriginal rights and Title” Law Council of Australia. Constitutional recognition of indigenous Australian. Law Council of Australia. 2011. 7-33 Borrows, John. Canada’s indigenous constitution. Toronto: University of Toronto Press. 2010. 123-145. Read More