Aboriginal Title: The Modern Jurisprudence of Tribal Land Rights
Aboriginal Title: The Modern Jurisprudence of Tribal Land Rights
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Abstract
Aboriginal title was one of the most remarkable and controversial legal developments in the common law world of the late-twentieth century. 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 seemingly embedded 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. Almost overnight these cases changed the political leverage of indigenous peoples. By the beginning of the millennium the doctrine had spread to Malaysia, Belize, and 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 of this book was 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. The book looks critically at the early conceptualisation of the doctrine, its doctrinal elaboration and evisceration in Canada and Australia — the busiest jurisdictions — through a proprietary paradigm located primarily (and constrictively) inside adjudicative processes. This book also considers the issues of inter-disciplinary thought and practice (for anthropologists and historians especially) 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.
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Front Matter
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1
Profile of a Modern Jurisprudence—An Idea whose Time had Come
Dr. P. G. McHugh
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2
Common Law Aboriginal Title and its Pipers at the Gate of Dawn—Gestation (1970s) and Breakthrough (1980s)
Dr. P. G. McHugh
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3
Doctrinal Pathways in Canada and Australia—The Devil in the Detail of a Maturing Jurisprudence
Dr. P. G. McHugh
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4
Aboriginal Title in the New Century and New Contexts: Fraternal Impact, International Influence
Dr. P. G. McHugh
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5
Aboriginal Title Within and Across Disciplinary Boundaries—Anthropologists, Historians, and Political Philosophers
Dr. P. G. McHugh
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6
Aboriginal Title—Diagnosis and Prognosis
Dr. P. G. McHugh
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End Matter
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