Profile of a Modern Jurisprudence—An Idea whose Time had Come

Dr. P. G. McHugh

in Aboriginal Title

Published in print August 2011 | ISBN: 9780199699414
Published online January 2012 | e-ISBN: 9780191732133 | DOI:
Profile of a Modern Jurisprudence—An Idea whose Time had Come

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This chapter gives a general historical explanation and contextualisation of the legal milieu in which aboriginal title emerged. It sees it as arising from a confluence of rights-oriented direction of public law (municipal and international) from the civil rights era of the late 1960s with tribal peoples' mobilisation against the increased tempo of state measures of assimilation intended to remove what special legal status the tribes had retained. Though the tribes successfully repelled these measures, the political branches were still slow to legislate for recognition of the tribes traditional land rights — claims that accompanied and grew more vocal with the spurning of assimilation as a driver of national legal policy. The Canadian, New Zealand, and Australian courts' creative use of the common law to recognise these land rights, drawing upon legal argumentation assembled by a handful of key scholars (in western Canada initially), broke that impasse.

Keywords: assimilation; termination; non-discrimination; public interest litigation; lawfare; rights; rights-talk

Chapter.  12622 words. 

Subjects: Public International Law

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