December 2012 Māori Law Review
Aboriginal Title: The Modern Jurisprudence of Tribal Land Rights
P G McHugh
Oxford University Press, Oxford, 2011 (400 pages)
Reviewed by Professor Richard Boast, Faculty of Law, Victoria University of Wellington
Professor McHugh’s new book on aboriginal title (Aboriginal Title: The Modern Jurisprudence of Tribal Land Rights, Oxford University Press, Oxford, 2011) is not a conventional textbook. Rather, it is a study of the emergence and expansion of a contemporary legal discourse. It will interest those who are already well-informed about aboriginal title – and who, perhaps, may be developing misgivings about it – and also those who are intrigued by the workings of the Common Law and how legal doctrine is formed.
Conventionally aboriginal title law has been presented as part of the innate wisdom of the Common Law from which some jurisdictions – Australia and New Zealand, for instance – departed, to their lasting regret, but which then, guided by the stewardship of far-sighted judges, at last returned. Scholars such as Henry Reynolds, in some of his books at least, and indeed McHugh himself, in earlier guise (in his Maori Magna Carta of 1991) exemplify this approach in varying ways.
Aboriginal title law as a new development
In his new book McHugh completely seeks to break free of this traditional narrative. Aboriginal title law, he tells us, is a new development. In the nineteenth century and for most of the twentieth it did not exist. There is no ancient wisdom to which New Zealand and Australia have returned. “As a doctrine, it [aboriginal title law] was not assembled and packaged as such until the very early 1970s” (p. 68). Before then “it had not been mustered into a comprehensive set of authorities, principles, and precedents that would enable the courts to intervene in a thoroughgoing manner to take the protection of traditional lands out of the ‘political’ sphere of Crown intendancy” (ibid).
McHugh does not suggest that there had been no legal interaction between states and indigenous groups in the Common Law world before the 1970s. Aboriginal title did not come from a clear sky. Materials were in place out of which it could be fashioned. Essentially, however, interaction between indigenous peoples and states before the 1970s had largely been directly with governments, unmediated in any way by developed legal doctrine. The Courts stayed clear of the field. “For well over a century the prevailing pattern had been one of judicial reluctance to intercede in relations between the tribes and Crown concerning land and their ancestral property rights” (p 2). In the last decades of the twentieth century there was a decisive break in legal continuity. A doctrine emerged that “changed forever the terms of the engagement between the tribes and the Anglo settler-state” (p 2). In fact the emergence of this doctrine was “the most important and dramatic change in the late-twentieth century national histories of Canada, New Zealand, and Australia (ibid). (This is a large claim which many will disagree with no doubt: it could be argued, for instance, that the most “important and dramatic change” in New Zealand in these years has been the rise of neo-liberal economic ideology and its imperfect implementation since 1986, or the growth of the environmental movement.)
The transformation was effected through a sequence of pivotal cases: Calder in Canada (1978), Martinez (1978) in the U.S., Te Weehi and the Maori Council cases in New Zealand (1986, 1987-1990), and Mabo No. 2 (1992) in Australia. The effect of the cases was “seismic and systemic”, and meant that there now had to be new agreements negotiated between tribes and governments – “modern-day treaties” (p 4).
Intellectual partnerships between barristers and academics
Where did this new intellectual framework come from? Not, in McHugh’s view, primarily from the judges. It originated, rather, from a kind of partnership between barristers and academics. The former included Thomas Berger QC in British Columbia and Edward Woodward QC in Australia, who argued respectively the indigenous cases in Calder and Milirrpum (Gove Land Rights case).
These early courtroom battles led to some early judicial pronouncements which were in turn analysed and systematised by a pioneering group of legal academics, notably the Canadian trio of Doug Sanders, Peter Cumming and Neil Mickenberg, and John Hookey in Australia (see pp 77-8). This was followed by a second wave of scholars later in the decade. In 1979 Brian Slattery “completed his highly influential DPhil dissertation at Oxford” before moving on to teach at the University of Saskatchewan and then at Osgoode Hall Law School (p 85). Slattery’s work “blazed the trail” (ibid) for Geoffrey Lester, Kent McNeil and McHugh himself. The author is in fact very reticent about his own personal role in the process he his writing about (this book is not a memoir), but which was of great significance too.
McHugh’s account accords a central role to the academic jurisconsult. In McHugh’s modern Common Law world, law emerges from academic teaching and commentary as much as it does from the judges and legal practitioners.
Judicialisation and legalisation of aboriginal title law has come at a price
To do justice in this short review to McHugh’s analysis is not possible. It must be emphasised, however, that in no way is McHugh’s account of the recent emergence of aboriginal title law merely celebratory. Judicialisation and legalisation has come at a price. Once established as doctrine, aboriginal title law has flourished and expanded. It has become more elaborate, has evolved into distinct “Australian” and “Canadian” traditions, and has advanced into other parts of the Common Law universe, including Malaysia and Belize.
As aboriginal title law has become legal doctrine, it has in turn arguably become separate from the aspirations and needs of the indigenous communities it was originally developed to serve. It has created a climate of “lawfare” – of litigiousness and legal complexity.
The final section of the book deals with the impacts of aboriginal title on disciplines other than law, notably in the fields of history and anthropology. “The emergence of the doctrine drew magnetically into its orbit a range of professional participants from a wide walk of discplines” (p 240). This engagement arose in part from the need for expert historical and ethnographic evidence in fora such as the Waitangi Tribunal in New Zealand and the National Native Title Tribunal in Australia. Here McHugh adds his voice to an emerging literature about the relationship between the use of history in legal processes and history as an academic discipline, something that the New Zealand scholarly community is very aware of (as McHugh notes: see p 278).
McHugh’s new book is beyond doubt a rich and fascinating contribution to the field. Its full implications will take some time to absorb.
Even at this stage, however, some further questions can be posed.
Is it really the case that there was a decisive and radical break in the later 20th century? This reviewer, for instance, has been more prone to stress the continuities in New Zealand legal history. Yet it has to be admitted that the case for a change in the legal Zeitgeist in the 1970s and 1980s is compelling. One only needs to read the judgments in In re the Ninety-Mile Beach (1963) and New Zealand Maori Council v Attorney-General (1987) to see that.
How important was it practically? Maybe McHugh attributes too much importance to the formulation of legal doctrine and not enough to the brute fact that governments could no longer be confident of winning cases involving indigenous peoples in the ordinary courts. Yet it is certain that governments have shown a new willingness and to negotiate and strike deals. It can be assumed that this has not arisen out of altruism.
McHugh does not neglect the United States, but it is not his main concern. Maybe bringing the U.S. into closer focus might yield a different analysis and a different periodization. There the high point seems to have been the years from 1934-1945, followed by a period of reaction after 1945 and then a return to judicial activism after that (with now, perhaps, a return to a more conservative approach).
What if the net were to be cast wider still, to group together not just the Common Law world but also Latin America, Taiwan, the Philippines?
Neither history nor historiography ever stands still. In the meantime we have Professor McHugh’s new book to help keep us working and thinking.