Terminology, Values and Identity

This chapter beginsValues and by discussing the terminology used in the debate over the constitutional position of Indigenous peoples in Australia. It rejects the use of the term ‘constitutional recognition of Indigenous peoples’ on the ground that the word ‘recognition’ denotes only an acknowledgement that something exists, whereas the true nature of the project is—or should be—the constitutionalisation of the rights of Indigenous peoples. The chapter examines impediments toConstitutional reformimpediments to constitutional reform in Australia, in particular resistance to change by conservative political forces as well as the inadequacy of civics educationConstitutional reformcivics education and, which makes voters reluctant to alter a system the workings of which they do not understand, and makes them vulnerable to fear-based arguments by opponents of reform. Failure to consider what theoretical framework should underpin the constitution has been a feature of Australian constitutional discourse since the constitution was first drafted. The chapter argues that the precondition for discussion of the content of a constitution is the identification of valuesValues upon which the constitution should be based. The chapter identifies human dignity, as explained with reference to Rawls’ theoryRightstheory of justice, as that value. The chapter also adoptsRightscommunal Rawls’ communal rightsCommunal rights theory as justification for the special rights of Indigenous peoplesRightsUnited Nations Declaration of Human Rights and explains that the purpose of the book is to explain what amendments to the constitution would be necessary to give effect in Australian law to the United Nations Declaration on the Rights of Indigenous PeoplesRightsUnited Nations Declaration on the Rights of Indigenous Peoples (UNDRIP). Key to any discussion of the rights of Indigenous people is a definition of who is Indigenous. The chapter ends by examining case law in which Indigeneity has been defined and proposes a broader, more inclusive definition to replace the one currently applied.