Chesterman, John --- "Balancing Civil Rights and Indigenous Rights: Is There A Problem?" [2002] AUJlHRights 18; (2002) 8(2) Australian Journal of Human Rights 125

^[*] Department of Political Science, The University of Melbourne

^[1]See, for example, Brennan 1993; Dodds 1998; Peterson and Sanders 1998; Havemann 1999a; Chesterman and Galligan 2000. For leading international viewpoints see Young 1989; Kymlicka 1995.

^[2] See further Nettheim 1998: 199.

^[3] See further Pritchard 1998 and An-Na’im 1992: 427-33. The first clause also appeared in the United Nations Declaration on the Granting of Independence to Colonial Countries and Peoples 1960, article 2.

^[4] See also Brennan 1995: 155.

^[5] On this issue see: Reynolds 1996: 180-6 and 1998: 214; Peterson 1998: 110; and Havemann 1999c: 474-5.

^[6] Canada’s Royal Commission on Aboriginal Peoples considered the issue in the context of the relationship between the Canadian Charter of Rights and Freedoms and the principle of Aboriginal ‘self-government’: Royal Commission on Aboriginal Peoples 1996: 165-9, 199-213, 226-34.

^[7] Wright’s book, which contains a considerable element of personal narrative, is semi-fictional. But it is fair to regard her account of the debate between the Council, the Liquor Commission and the Anti-Discrimination Commission as factual. See also Northern Territory Liquor Commission 1999; d’Abbs et al 2000; Edgar 2001.

^[8] See, for example, the opinion of Noel Pearson in Pearson 2000.

^[9] On this point, see also RDC 1995a: 64-8; Pritchard 1995: 195-9; Bartlett 1999: 411.

^[10] See Nettheim 1995; Nettheim 1998: 200-201; Triggs 1999: 379.

^[11] See further Brennan 1995: 103.

^[12] On a tangential point, the High Court in the Kartinyeri (Hindmarsh Island bridge) case considered the question of whether the races power (section 51 (26) of the Constitution) enabled the Commonwealth parliament to enact laws to the detriment of Aboriginal people as well as for their benefit. The Court decided that the Commonwealth did have this power, with one line of reasoning being that if the Commonwealth could pass laws (for the benefit of Indigenous people), it also had to have the power to abolish or amend those laws. The power to amend or abolish laws would not exist, however, if all laws had to be for the benefit of Indigenous people.

^[13] On these issues see McRae et al 1997 (chapter 8).

^[14] This is regulated by the ‘Activities Local Law 1999’ (Melbourne), section 3.1.