A History of Sovereignty, Status, and Self-determination
Author: Paul G. McHugh
Publisher: Oxford University Press on Demand
This book describes the encounter between the common law legal system and the tribal peoples of North America and Australasia. It is a history of the role of anglophone law in managing relations between the British settlers and indigenous peoples from colonial foundation to the end of the Twentieth century. The historical basis of relations is described through the enduring, but constantly shifting questions of sovereignty, status and, more recently, self-determination.
Author: Jane A. Hofbauer
In Sovereignty in the Exercise of the Right to Self-Determination Jane Hofbauer explores to what extent (indigenous) peoples can be designated as sovereign entities through the exercise of different tiers of self-determination.
Author: Ulla Secher
Publisher: Bloomsbury Publishing
Described as 'ground-breaking' in Kent McNeil's Foreword, this book develops an alternative approach to conventional Aboriginal title doctrine. It explains that aboriginal customary law can be a source of common law title to land in former British colonies, whether they were acquired by settlement or by conquest or cession from another colonising power. The doctrine of Common Law Aboriginal Customary Title provides a coherent approach to the source, content, proof and protection of Aboriginal land rights which overcomes problems arising from the law as currently understood and leads to more just results. The doctrine's applicability in Australia, Canada and South Africa is specifically demonstrated. While the jurisprudential underpinnings for the doctrine are consistent with fundamental common law principles, the author explains that the Australian High Court's decision in Mabo provides a broader basis for the doctrine: a broader basis which is consistent with a re-evaluation of case-law from former British colonies in Africa, as well as from the United States, New Zealand and Canada. In this context, the book proffers a reconceptualisation of the Crown's title to land in former colonies and a reassessment of conventional doctrines, including the doctrine of tenure and the doctrine of continuity. 'With rare exceptions ... the existing literature does not probe as deeply or question fundamental assumptions as thoroughly as Dr Secher does in her research. She goes to the root of the conceptual problems around the legal nature of Indigenous land rights and their vulnerability to extinguishment in the former colonial empire of the Crown. This book is a formidable contribution that I expect will be influential in shifting legal thinking on Indigenous land rights in progressive new directions.' From the Foreword by Professor Kent McNeil (to read the Foreword please click on the 'sample chapter' link).
The Minds of Cherokees, Blacks, and Whites on the Tennessee Frontier
Author: Cynthia Cumfer
Publisher: UNC Press Books
Exploring the mental worlds of the major groups interacting in a borderland setting, Cynthia Cumfer offers a broad, multiracial intellectual and cultural history of the Tennessee frontier in the Revolutionary and early national periods, leading up to the era of rapid westward expansion and Cherokee removal. Attentive to the complexities of race, gender, class, and spirituality, Cumfer offers a rare glimpse into the cultural logic of Native American, African American, and Euro-American men and women as contact with one another powerfully transformed their ideas about themselves and the territory they came to share. The Tennessee frontier shaped both Cherokee and white assumptions about diplomacy and nationhood. After contact, both groups moved away from local and personal notions about polity to embrace nationhood. Excluded from the nationalization process, slaves revived and modified African and American premises about patronage and community, while free blacks fashioned an African American doctrine of freedom that was both communal and individual. Paying particular attention to the influence of older European concepts of civilization, Cumfer shows how Tennesseans, along with other Americans and Europeans, modified European assumptions to contribute to a discourse about civilization, one both dynamic and destructive, which has profoundly shaped world history.
Indigenous Australians and the Language of Colonial Government
Author: Bruce Buchan
Category: Political Science
A book about how European colonists in Australia represented the Indigenous peoples they found there, and the tasks of governing them within the terms of Western political thought. It emphasises how the framework of ideas drawn from the traditions of Western political thought was employed in the imperial government of Indigenous peoples.
The Wi Parata Case in New Zealand Law & History
Author: David Williams
Publisher: Auckland University Press
When the New Zealand Supreme Court ruled on Wi Parata v the Bishop of Wellington in 1877, the judges infamously dismissed the relevance of the Treaty of Waitangi. During the past 25 years, judges, lawyers, and commentators have castigated this “simple nullity” view of the treaty. The infamous case has been seen as symbolic of the neglect of Maori rights by settlers, the government, and New Zealand law. In this book, the Wi Parata case—the protagonists, the origins of the dispute, the years of legal back and forth—is given a fresh look, affording new insights into both Maori-Pakeha relations in the 19th century and the legal position of the treaty. As relevant today as they were at the time of the case ruling, arguments about the place of Indigenous Maori and Pakeha settlers in New Zealand are brought to light.
Transpositions of Empire
Author: S. Dorsett,I. Hunter
A collection that focuses on the role of European law in colonial contexts and engages with recent treatments of this theme in known works written largely from within the framework of postcolonial studies, which implicitly discuss colonial deployments of European law and politics via the concept of ideology.
Negotiating European Expansion, 1600-1900
Author: Saliha Belmessous
Publisher: Oxford University Press
Most histories of European appropriation of indigenous territories have, until recently, focused on conquest and occupation, while relatively little attention has been paid to the history of treaty-making. Yet treaties were also a means of extending empire. To grasp the extent of European legal engagement with indigenous peoples, Empire by Treaty: Negotiating European Expansion, 1600-1900 looks at the history of treaty-making in European empires (Dutch, Spanish, Portuguese, French and British) from the early 17th to the late 19th century, that is, during both stages of European imperialism. While scholars have often dismissed treaties assuming that they would have been fraudulent or unequal, this book argues that there was more to the practice of treaty-making than mere commercial and political opportunism. Indeed, treaty-making was also promoted by Europeans as a more legitimate means of appropriating indigenous sovereignties and acquiring land than were conquest or occupation, and therefore as a way to reconcile expansion with moral and juridical legitimacy. As for indigenous peoples, they engaged in treaty-making as a way to further their interests even if, on the whole, they gained far less than the Europeans from those agreements and often less than they bargained for. The vexed history of treaty-making presents particular challenges for the great expectations placed in treaties for the resolution of conflicts over indigenous rights in post-colonial societies. These hopes are held by both indigenous peoples and representatives of the post-colonial state and yet, both must come to terms with the complex and troubled history of treaty-making over 300 years of empire. Empire by Treaty looks at treaty-making in Dutch colonial expansion, the Spanish-Portuguese border in the Americas, aboriginal land in Canada, French colonial West Africa, and British India.
Author: Kelly L Grotke,Markus J Prutsch
Publisher: OUP Oxford
If one counts the production of constitutional documents alone, the nineteenth century can lay claim to being a 'constitutional age'; one in which the generation and reception of constitutional texts served as a centre of gravity around which law and politics consistently revolved. This volume critically re-examines the role of constitutionalism in that period, in order to counter established teleological narratives that imply a consistent development from absolutism towards inclusive, participatory democracy. Various aspects of constitutional histories within and outside of Europe are examined from a comparative, transnational, and multidisciplinary historical perspective, organized around five key themes. The first part looks at constitutions as anti-revolutionary devices, and addresses state building, monarchical constitutionalism, and restorations. The second part takes up constitutions and the justification of new social inequalities, focusing on women's suffrage, human rights, and property. The third part uses individual country studies to take on questions of how constitutions served to promote nationalism. The use of constitutions as instruments of imperialism is covered in the fourth part, and the final part examines the ways that constitutions function simultaneously as legal and political texts. These themes reflect a certain scepticism regarding any easy relationship between stated constitutional ideals and enacted constitutional practices. Taken together, they also function as a general working hypothesis about the role of constitutions in the establishment and maintenance of a domestically and internationally imbalanced status quo, of which we are the present-day inheritors. More particularly, this volume addresses the question of the extent to which nineteenth-century constitutionalism may have set the stage for new forms of domination and discrimination, rather than inaugurating a period of 'progress' and increasing equality.
Author: Matthew Palmer
Delving into an important constitutional issue, this thorough examination details the up-to-date legal arguments involved in the indigenous-rights debate around the 1840 Treaty of Waitangi. Uniquely combining conceptual academic theory with grounded and realistic suggestions for improving the ways the New Zealand government deals with the Maori, this comprehensive account outlines the significance behind an unresolved controversy that affects New Zealand’s identity and culture, as well as their constitution, law, and economy.
The Modern Jurisprudence of Tribal Land Rights
Author: P. G. McHugh
Publisher: OUP Oxford
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.
Author: Lindsey Te Ata o Tu MacDonald
Publisher: VDM Publishing
Category: Political Science
This mongraph reasserts the primacy of property in political theorising. Arguing that the determination of property rights is part of the justification of the state, MacDonald notes the failure of much current philosophising to take account of this role when setting out the normative arguments for legitimate political authority. MacDonald criticises current philosophical definitions of property as a bundle-of-rights, arguing that for normative purposes, property is a right of exclusion in rem. Thereby MacDonald escapes the interminable moral and legal arguments over property - such as questions of Lockean labour theory, self-ownership, and indigenous historical injustice - that have dominated recent political philosophy. Instead, the book focuses on the failure of libertarian and liberal egalitarian theories of justice to produce a plausible account of both legitimate political authority's right to regulate property, and the principles upon which that regulation ought to occur. The book will be of interest to scholars of political philosophy and theory, especially those engaged in the contemporary ideas of justice, legitimacy and the justification of the state.
Publisher: Hart Pub
This work on the history of tax law presents the papers delivered at the third Tax Law History Conference in 2006 organised by the Centre for Tax Law in the Law Faculty at Cambridge University. The papers deal with a range of topics, and though the breadth of topics is broad, it is not devoid of pattern. The majority of the papers deal with themes connected with continental Europe, law and empire, international law, and the problems of progression and the tax system. As a whole the papers, by leading tax scholars from all over the world, once again illustrate a wide variety and depth of learning on tax history, and highlight the important issues waiting to be investigated in this rapidly growing field of scholarship.
Author: Benjamin J. Richardson
Publisher: Hart Pub Limited
Category: Business & Economics
This volume of new essays presents critical new scholarship on law for sustainable development. Its contributors provide international and comparative perspectives on the current state of environmental law and its future directions. Aimed at both students and scholars in law and other social sciences, it goes beyond conventional descriptions of environmental law and policy to a theoretical and interdisciplinary analysis of the role of law in sustainable development. Starting from the premise that ecological sustainability requires environmental law systems to be sensitive to a wide array of institutional, social and economic issues and to emerging forms of environmental governance beyond conventional legal regulation, the book explores: future directions in command regulation; changing forms of public administration; risk assessment and precautionary regulation; ecological justice; public participation in environmental decision-making; indigenous peoples and the environment; industry self-regulation; economic instruments; sustainable finance; the state of international environmental law; and environmental law in developing countries. Contributors include Carolyn Abbot (Manchester), Klaus Bosselmann (Auckland), David Driesen (Syracuse), Steve Dovers (ANU), Jaye Ellis (McGill), Elizabeth Fisher (Oxford), Benjamin Richardson (Osgoode) and Stepan Wood (Osgoode).
Canada, Australia, and New Zealand
Author: Louis A. Knafla,Haijo Westra
Publisher: UBC Press
Delgamuukw. Mabo. Ngati Apa. Recent cases have created a framework for litigating Aboriginal title in Canada, Australia, and New Zealand. The distinguished group of scholars whose work is showcased here, however, shows that our understanding of where the concept of Aboriginal title came from – and where it may be going – can also be enhanced by exploring legal developments in these former British colonies in a comparative, multidisciplinary framework. This path-breaking book offers a perspective on Aboriginal title that extends beyond national borders to consider similar developments in common law countries.
A Theoretical Overview
Author: Lorenzo Veracini
Publisher: Palgrave MacMillan
Settler colonialism is a global and transnational phenomenon, and as much a thing of the present as a thing of the past. In this book, Lorenzo Veracini explores the settler colonial 'situation' and explains how there is no such thing as neo-settler colonialism or post-settler colonialism because settler colonialism is a resilient formation that rarely ends. Not all migrants are settlers: settlers come to stay, and are founders of political orders who carry with them a distinct sovereign capacity. And settler colonialism is not colonialism: settlers want Indigenous people to vanish (but can make use of their labour before they are made to disappear). Sometimes settler colonial forms operate within colonial ones, sometimes they subvert them, sometimes they replace them. But even if colonialism and settler colonialism interpenetrate and overlap, they remain separate as they co-define each other.