Constitutional Catallaxy and Indigenous Rights: The Australian Case

Abstract

This paper interrogates certain theoretical presumptions surrounding the development and maintenance of a political constitution. The extent to which constitutional agreement is inclusive of all persons to be affected by the activation of proposed provisions, and the extent to which such provisions remain agreeable, is critically appraised. The historical exclusion of Indigenous peoples from constitutional agreement procedures, and the difficulties establishing constitutional accommodation of Indigenous perspectives, remains a significant source of socio-political tension in settler-colonial states. We apply recent developments in political economy to interpret Australian constitutional development as the manifestation of complex, adaptive arrangements, instituted by actions seeking to reframe the boundaries of viable political action. Indigenous activists and their allies have long engaged in acts of “constitutional entrepreneurship” demanding changes to Australia’s constitutional provisions, aiming to achieve cultural and political recognition and attaining redress for historical injustices. Certain Indigenous groups have also propounded complementary ideas in the space of “sovereignty entrepreneurship,” as part of efforts to secure greater self-determination mainly through attempts at constitutional negotiation with dominant majorities. These entrepreneurial acts set a basis for contestation between Indigenous and non-Indigenous interests and values, as presented constitutionally, but cannot be regarded as anomalous given the reality of constitutional development as an open-ended endeavour.