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Constitutional and judicial recognition of Aboriginal and Torres Strait Islander peoples: the migration of foundational ideas from Canada to Australia

Parrott, Louise Elizabeth
Fonte: Universidade Nacional da Austrália Publicador: Universidade Nacional da Austrália
Tipo: Thesis (PhD); Doctor of Philosophy (PhD)
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Ideas that are migrating from Canada are already guiding advocates who seek greater judicial and constitutional recognition of Aboriginal and Torres Strait Islander peoples. However, there is a need for a conceptual framework through which to approach the lessons that can be learned from Canada in this area. Inspired by The Migration of Constitutional Ideas, an edited work by Sujit Choudhry, in this thesis I argue that by thinking about the migration and transplantation of foundational ideas and by differentiating between four ‘modes’ of migration (arguments of counsel, judicial determinations, academic critique and constitutional reform deliberations), it is possible to better understand some of the processes that are at play. In particular, by adopting the terminology of the ‘migration’ and ‘transplantation’ of ‘foundational’ ideas, I aim to demonstrate that it is dangerous to transplant foundational ideas, whether derived from the common law or constitutional law, without other ideas (particularly in relation to implications) also migrating. This thesis is a response to two distinct but related topics: ‘Topic 1 — The Potential for Judicial Recognition of Indigenous Self-Government Rights: The Migration of Foundational Ideas from Canada to Australia’ and ‘Topic 2 — Constitutional Recognition of Aboriginal and Torres Strait Islander Peoples...