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Aboriginal Title

Aboriginal title represents one of the most remarkable and controversial legal developments in the common law world of the late-twentieth century. Overnight it changed the legal position of indigenous peoples. The common law doctrine gave sudden substance to the tribes' claims to justiciable property rights over their traditional lands, catapulting these up the national agenda and jolting them out of a previous culture of governmental inattention. In a series of breakthrough cases national courts adopted the argument developed first in western Canada, and then New Zealand and Australia by a handful of influential scholars. By the beginning of the millennium the doctrine had spread to Malaysia, Belize, southern Africa and had a profound impact upon the rapid development of international law of indigenous peoples' rights. This book is a history of this doctrine and the explosion of intellectual activity arising from this inrush of legalism into the tribes' relations with the Anglo settler state. The author is one of the key scholars involved from the doctrine's appearance in the early 1980s as an exhortation to the courts, and a figure who has both witnessed and contributed to its acceptance and subsequent pattern of development. He looks critically at the early conceptualisation of the doctrine, its doctrinal elaboration in Canada and Australia - the busiest jurisdictions - through a proprietary paradigm located primarily (and constrictively) inside adjudicative processes. He also considers the issues of inter-disciplinary thought and practice arising from national legal systems' recognition of aboriginal land rights, including the emergent and associated themes of self-determination that surfaced more overtly during the 1990s and after. The doctrine made modern legal history, and it is still making it.
Product Details

Table of Contents

1. Profile of a modern jurisprudence: an idea whose time had come ; 2. Common Law Aboriginal Title and its pipers at the gate of dawn - gestation (1970s) and breakthrough (1980s) ; 3. Doctrinal pathways in Canada and Australia - the devil in the detail of a maturing jurisprudence ; 4. Aboriginal title in the new century and new contexts: fraternal impact, international influence ; 5. Aboriginal title within and across disciplinary boundaries - anthropologists, historians and political philosophers ; 6. Aboriginal title - diagnosis and prognosis

About the Author

P.G. McHugh is a New Zealander whose pioneering work has been at the forefront of this field. After graduating LLB (Hons, first class) from Victoria University of Wellington he completed an LLM at the University of Saskatchewan (1981) and a PhD at the University of Cambridge (winner of Yorke Prize 1988) for his dissertation "The aboriginal rights of the New Zealand Maori at common law. " His work has been cited in court judgments and has been influential in policy-setting and resolution of land claims in several jurisdictions where he has acted as occasional independent advisor to governments and tribal bodies. He is known not only as a legal scholar but a legal historian, especially in the field of historiography and the disciplinary interplay of law and history.


Mchugh's book should be valued as a comprehensive guide to both the historical and legal development of the aboriginal title doctrine in several representative jurisdictions. The experience of reading this book will leave the reader not only enriched but also importantly inspired. * Wei Guihong, Chinese Journal of International Law * McHugh...does a fine job of examining the answers that the law has come up with in less than 350 pages. * Eleanor Healy Birt, Journal of the Liberal International British Group * McHugh's new book is beyond doubt a rich and fascinating contribution to the field. Its full implications will take some time to absorb. * Richard Boast, Maori Law Review * Aboriginal Title offers an excellent overall description and original analysis of the common law aboriginal title doctrine. With a detailed record of historical development of the doctrine and a coverage of the most recent developments within the relevant jurisdictions, the book accomplishes a synthesis of the most remarkable and controversial legal development in the common law-world of the last quarter of the twentieth century. The experience of reading this book will leave the reader not only enriched but also importantly inspired. * WEI Guihong, Chinese Journal of International Law *

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