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Treaty and Statehood: Aboriginal Self-determination

Treaty and Statehood: Aboriginal Self-determination

Author: Michael Mansell
Publisher: The Federation Press
ISBN: 9781760020835
Published In: December 2016
Format: Paperback
Jurisdiction: Australia ? Disclaimer:
Countri(es) stated herein are used as reference only

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If governments of Australia agreed to share power with Aboriginal people, what would the result be? And if Australia was to have a settlement or a treaty with Aboriginal and Torres Strait Islanders, what would a treaty deal with and how would a treaty affect the general public? Is there anything beyond a treaty?

Treaty and Statehood: Aboriginal Self-determination, by Aboriginal author Michael Mansell, answers these questions and more. Mansell examines the New Zealand model of designated Māori seats and applies the idea to comprise 12 Indigenous Senators in Australia. He argues designated seats and a treaty are constitutionally permissible, and details the possible content for a treaty. He discusses the meaning of self-determination and its limitations, and also thoroughly reviews Aboriginal sovereignty and its function in a modern Australia.

The book critically examines the legality of designated seats, treaty, sharing of power and autonomous communities. The legal examination is broken down into easy-to-understand language. Ultimately, Mansell looks at whether justice can best be served to Aboriginal people through a new State of Australia.

This new idea of a seventh State – or First State for the First peoples, as the author prefers – is constitutionally legal. Its practicality is also critically examined, including the rights each Aboriginal community or ‘nation’ would have under statehood.

This is a book that answers our query about what reconciliation ultimately means and how it can be achieved.

Foreword by Geoffrey Robertson QC

Introduction

Chapter 1: Setting the scene

Chapter 2: Accommodation of Aboriginal rights in a democracy

Chapter 3: The electoral system

Unfair electorates

Overseas experience

Are designated seats constitutionally legal?

Twelve Indigenous Senators

Chapter 4 Aboriginals and the Australian constitution

The nature of the Australian Constitution

A constitutionally entrenched Indigenous advisory body

Race and anti-discrimination in the Constitution

The race power: section 51(26) of the Australian Constitution

The relevance of section 25

A missed opportunity

Legislation

Chapter 5: Aboriginal sovereignty

What is sovereignty?

Aboriginal sovereignty today

Sovereignty inside Australia

Popular sovereignty

Loss of Aboriginal sovereignty through assimilation and citizenship

Sovereignty at work

Chapter 6: Treaty

Part I: The Preliminaries

Treaty defined

Inherent indigenous rights

Purpose and effect of a treaty

Are there any legal impediments to making an agreement or treaty with the Indigenous peoples?

Over-arching treaty or many treaties?

Part II: Minimum Content of a Treaty

Minimum content

Sovereignty and treaty

Restore, exclude and accommodate

Part III: An Australian Treaty

What might be in a treaty

Lessons from near and afar

Treaty enforcement

Chapter 7: Treaty making process

Negotiating stage

Settlement: One New Zealand experience

Post-settlement

Chapter 8: Self-determination

The international source for self-determination

Whom does this right apply to?

All peoples have the right to self-determination

Under what circumstances does self-determination apply?

The four criteria for statehood and its link to self-determination

The Australian position

The divide between law and politics

Chapter 9: Aboriginal Statehood: A new first state

A new State from an old nation

Territory must be identified before the Commonwealth can legislate a new State

States surrendering territory to new State

Viability of new State

Crown lands as waste lands?

Chapter 10: A new State in operation

Customary law

Limits and restrictions on customary law

How secure are land rights and native title lands?

One Aboriginal nation or many

Constitutional limitation on Commonwealth interference

Preamble to new State Constitution

The Racial Discrimination Act and Aboriginal statehood

‘Expanded’ Aboriginal State responsibility

Chapter 12 : Incremental steps

A Federal Aboriginal territory

Conclusion

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