Decolonizing the rule of law: Mabos' case and postcolonial constitutionalism

Abstract

IntroductionAboriginal claims for self-government in the Americas and Australasia are distinctive for being less about secession-at least so far-than about demanding an innovative rethinking of the regulative norms and institutions within and between already established nation-states.In particular, about rethinking the constitutional bases of these countries, including the conceptions of sovereignty that underpin regulative constitutional and legal norms.Recent cases in Australia (and Canada) provide an opportunity to consider the nature of such claims, and some of the theoretical implications for regulative conceptions of sovereignty and the rule of law.A general question informing the entire discussion here is: how do particular conceptions of the rule of law affect Aboriginal claims? 1 Can a distinctive body of Aboriginal law survive in a liberal constitutional state already constituted in part by regulative ideals of the rule of law?As a preliminary to answering these questions we need to establish the nature of claims to self-government and particularly (i) the relationship between claims to self-government and sovereignty and (ii) the internal scope of self-government, that is, the degree to which it shields Aboriginal communities from such legal instruments as a Charter of Rights.Consideration of these points suggests that claims to self-government are not reducible to claims for national sovereignty in the form of independent statehood.Nor do self-government claims entail any necessary violation of principles of human rights or respect for persons.Once we are clear as to what they are claims to and upon what grounds, as well as how they challenge existing understandings of sovereignty, we are left with a