A Simple Common Lawyer: Essays in Honour of Michael Taggart, 2009
Published in the collection of essays in festschriften for the magnificent Mike Taggart, produced... more Published in the collection of essays in festschriften for the magnificent Mike Taggart, produced in record time by Grant Huscroft, David Dyzenhaus (editors) and Richard Hart (publisher).
"Historiography . . . is . . . an adventure in the history of ideas, the study of how a subject h... more "Historiography . . . is . . . an adventure in the history of ideas, the study of how a subject has been written about, how trends and interests in research have changed, how public events, world affairs, and so simple a matter as the opening of an archive shapes the way in which writers explore the past. Historiography is also about how and why a people have come to comprehend themselves in a certain way. Historiography is thus more than a record of what has been written. It is also the examination of why a body of writing has taken the shape it has." Robin Winks in the Preface to Volume 5 of The Oxford History of the British Empire – Historiography (Oxford: Oxford University Press, 1999) at xiii.
I spent a wonderful year at the College of Law, Saskatoon doing my LLM (1981) and playing rugby f... more I spent a wonderful year at the College of Law, Saskatoon doing my LLM (1981) and playing rugby for the Gophers Club. I returned to give this Law Society lecture. With thanks to Beth Bilson, whose dedication to the College and University has been remarkable, and Dwight Newman, excellent scholar - the law school's brightest star, true son of the prairies.
Martin Dixon, ed., Modern Studies in Property Law, Volume 5 , 2009
In the early 1980s a band of academics—lawyers most of us—were arguing that the common law recogn... more In the early 1980s a band of academics—lawyers most of us—were arguing that the common law recognized the customary property rights of the tribal inhabitants of Canada and Australasia. This is a story I have recounted on numerous occasions, more fully ABORIGINAL TITLE (2011).
2 New Zealand Journal of Public and International Law, 2004
This article considered the Court of Appeal judgment in the NGATI APA case (2003) at the stage wh... more This article considered the Court of Appeal judgment in the NGATI APA case (2003) at the stage where the Labour Government was first proposing legislation.
39 Victoria University of Wellington Law Review, 2008
This article looks at the impact and afterlife of the groundbreaking Maori Council judgments hand... more This article looks at the impact and afterlife of the groundbreaking Maori Council judgments handed down in the late 1980s by the Court of Appeal presided by the late Sir Robin Cooke (as he then was). This article refutes any notion of constitutional relations with Māori being founded on race despite unilateral (and long discarded) legal design tending towards that characterisation. The true pattern has been iwi-based and it has arisen from the continuity of whakapapa in the organization of Maori political life and relations with the state notwithstanding meddlesome but ultimately ineffectual legislative attempts to dilute tribalism. Over the past twenty plus years, the Treaty claims processes initiated in 1985 have accentuated and revitalised that tribalism. Far from licensing judicial interventionism "Treaty principles" are part of an embedded and conservative jurisprudence of Māori affairs. Their elimination from legislation would amputate a major segment of that jurisprudence. The courts, whose profile in this broad field (Treaty claims processes most notably) is mostly a resiling one, would respond by generating their own version. The legacy of Sir Robin Cooke's court is deep-rooted and thoroughly integrated into the New Zealand legal system. In early September 2006, as I was preparing the earliest version of this paper for a public lecture at Victoria University of Wellington, there came the sad news of the death of Lord Cooke of Thorndon. For me Robin's personal support was considerable, particularly when I was a young scholar then junior academic at Cambridge University 1 during the 1980s working in what was then the uncharted territory of common-law aboriginal rights. I opened my lecture with a tribute to him as a jurist, scholar and friend and have since revised this text to emphasise more closely our personal connection, which was especially strong during the key period when he was adjudicating upon important issues surrounding Māori claims.
48:3 University of British Columbia Law Review, 2015
My response to the Tsilhqot'in case in the Supreme Court of Canada (2014) commissioned for a spec... more My response to the Tsilhqot'in case in the Supreme Court of Canada (2014) commissioned for a special edition. This article spurred a snippy billet from the ever-vigilant Kent McNeil, telling me I had not cited him “Reconciliation and Third Party Interests: Tsilhqot’in Nation v. British Columbia” (2010) 8 Indigenous Law Journal 7-25 or John Borrows "Aboriginal Title and Private Property" (2015) 71 SCLR (2d), 91-134.
46 Victoria University of Wellington Law Review, 2015
This article reflects upon themes and foundations of the contemporary legalism attending the reso... more This article reflects upon themes and foundations of the contemporary legalism attending the resolution of aboriginal claims. It opens with a broad description of the historical foundation of that legalism in the imperial prerogative of the Crown and its continuance in the national constitutional systems of Canada and New Zealand. It then considers how that legalism, with its origination in the imperial prerogative and the ongoing comparative dimension associated with that origin, inhabits a recent local example, namely New Zealand's Marine and Coastal Area (Takutai Moana) Act 2011. The article shows how this provision reflects the general features of indigenous rights' jurisprudence as it has emerged over the past 30 years: it carries residual elements of the imperial prerogative and it has a comparative element, yet it is also a peculiarly New Zealand instance that marks a new step in the jurisprudence. This was a festschriften edition to Professor WH "Bill' Atkin whose contribution to the VUWLR has been immense. It was an honour to contribute to this recognition of Bill and Virginia.
16 Victoria University of Wellington Law Review, 1986
The thesis of this article is that there exist two systems of land tenure in New Zealand as a mat... more The thesis of this article is that there exist two systems of land tenure in New Zealand as a matter of law, each independent of the other. In consequence, "aboriginal servitudes" (fishing rights, homage to urupa-burial grounds-flora collection, etc.) continue to affect land throughout the country, irrespective of the indefeasibility of title under the Land Transfer Act. The doctrine of aboriginal title is taken to its logical extent, albeit novel and judicially untested.
Follow-up to audition pieces for Junior Research Fellowship round, 1983. This article won the Ho... more Follow-up to audition pieces for Junior Research Fellowship round, 1983. This article won the Hon. Rex Mason Prize (1985) for best article in a New Zealand legal periodical. With earlier two cited by Justice Williamson in Te Weehi v Regional Fisheries Officer (1986) 1 N.Z.L.R. 682. This is the beginning of the legal road leading to New Zealand's Sea Fisheries Settlement with Maori and the Seabed and Foreshore controversy of early 2000s - where 'the trouble began,' as the Right Hon Michael Cullen once said to me.
14 Victoria University of Wellington Law Review, 1984
Second of a brace written as audition pieces for Cambridge Colleges' Junior Research Fellowship r... more Second of a brace written as audition pieces for Cambridge Colleges' Junior Research Fellowship round, 1983. This article plus its companion in the Canterbury Law Review and another soon after in Otago Law Review were cited by Justice Williamson in Te Weehi v Regional Fisheries Officer (1986) 1 N.Z.L.R. 682. This is the beginning of the legal road leading to New Zealand's Sea Fisheries Settlement with Maori and the Seabed and Foreshore controversy of early 2000s - where 'the trouble began,' as the Right Hon Michael Cullen once said to me.
18 Victoria University of Wellington Law Review, 1988
This follows my earlier articles that established common law basis for (New Zealand) Maori claims... more This follows my earlier articles that established common law basis for (New Zealand) Maori claims against the Crown. In response to my argument (which Jock Brookfield endorsed) the Government committed itself to repealing the offending provisions of the Maori Affairs Act (section 150) however, this article explained how repeal simpliciter would expose the Crown to legal proceedings because limitations did not run for breach of trust/fiduciary duty. Sections 360 and 361 Te Ture Whenua Maori Act 1993 were inserted to prevent that possibility. I was heavily criticized for drawing governmental attention to this consequence, which dawned on me in conversation with David Baragwanath in his chambers.
First of a brace written as audition pieces for Junior Research Fellowship round, 1983. This art... more First of a brace written as audition pieces for Junior Research Fellowship round, 1983. This article plus its companion in the VUWLR and another soon after in Otago Law Review were cited by Justice Williamson in Te Weehi v Regional Fisheries Officer (1986) 1 N.Z.L.R. 682. This is the beginning of the legal road leading to New Zealand's Sea Fisheries Settlement with Maori and the Seabed and Foreshore controversy of early 2000s - where 'the trouble began,' as the Right Hon Michael Cullen once said to me.
This is my 1987 doctoral dissertation, which has been in circulation for years but never made ava... more This is my 1987 doctoral dissertation, which has been in circulation for years but never made available in public domain.
A Simple Common Lawyer: Essays in Honour of Michael Taggart, 2009
Published in the collection of essays in festschriften for the magnificent Mike Taggart, produced... more Published in the collection of essays in festschriften for the magnificent Mike Taggart, produced in record time by Grant Huscroft, David Dyzenhaus (editors) and Richard Hart (publisher).
"Historiography . . . is . . . an adventure in the history of ideas, the study of how a subject h... more "Historiography . . . is . . . an adventure in the history of ideas, the study of how a subject has been written about, how trends and interests in research have changed, how public events, world affairs, and so simple a matter as the opening of an archive shapes the way in which writers explore the past. Historiography is also about how and why a people have come to comprehend themselves in a certain way. Historiography is thus more than a record of what has been written. It is also the examination of why a body of writing has taken the shape it has." Robin Winks in the Preface to Volume 5 of The Oxford History of the British Empire – Historiography (Oxford: Oxford University Press, 1999) at xiii.
I spent a wonderful year at the College of Law, Saskatoon doing my LLM (1981) and playing rugby f... more I spent a wonderful year at the College of Law, Saskatoon doing my LLM (1981) and playing rugby for the Gophers Club. I returned to give this Law Society lecture. With thanks to Beth Bilson, whose dedication to the College and University has been remarkable, and Dwight Newman, excellent scholar - the law school's brightest star, true son of the prairies.
Martin Dixon, ed., Modern Studies in Property Law, Volume 5 , 2009
In the early 1980s a band of academics—lawyers most of us—were arguing that the common law recogn... more In the early 1980s a band of academics—lawyers most of us—were arguing that the common law recognized the customary property rights of the tribal inhabitants of Canada and Australasia. This is a story I have recounted on numerous occasions, more fully ABORIGINAL TITLE (2011).
2 New Zealand Journal of Public and International Law, 2004
This article considered the Court of Appeal judgment in the NGATI APA case (2003) at the stage wh... more This article considered the Court of Appeal judgment in the NGATI APA case (2003) at the stage where the Labour Government was first proposing legislation.
39 Victoria University of Wellington Law Review, 2008
This article looks at the impact and afterlife of the groundbreaking Maori Council judgments hand... more This article looks at the impact and afterlife of the groundbreaking Maori Council judgments handed down in the late 1980s by the Court of Appeal presided by the late Sir Robin Cooke (as he then was). This article refutes any notion of constitutional relations with Māori being founded on race despite unilateral (and long discarded) legal design tending towards that characterisation. The true pattern has been iwi-based and it has arisen from the continuity of whakapapa in the organization of Maori political life and relations with the state notwithstanding meddlesome but ultimately ineffectual legislative attempts to dilute tribalism. Over the past twenty plus years, the Treaty claims processes initiated in 1985 have accentuated and revitalised that tribalism. Far from licensing judicial interventionism "Treaty principles" are part of an embedded and conservative jurisprudence of Māori affairs. Their elimination from legislation would amputate a major segment of that jurisprudence. The courts, whose profile in this broad field (Treaty claims processes most notably) is mostly a resiling one, would respond by generating their own version. The legacy of Sir Robin Cooke's court is deep-rooted and thoroughly integrated into the New Zealand legal system. In early September 2006, as I was preparing the earliest version of this paper for a public lecture at Victoria University of Wellington, there came the sad news of the death of Lord Cooke of Thorndon. For me Robin's personal support was considerable, particularly when I was a young scholar then junior academic at Cambridge University 1 during the 1980s working in what was then the uncharted territory of common-law aboriginal rights. I opened my lecture with a tribute to him as a jurist, scholar and friend and have since revised this text to emphasise more closely our personal connection, which was especially strong during the key period when he was adjudicating upon important issues surrounding Māori claims.
48:3 University of British Columbia Law Review, 2015
My response to the Tsilhqot'in case in the Supreme Court of Canada (2014) commissioned for a spec... more My response to the Tsilhqot'in case in the Supreme Court of Canada (2014) commissioned for a special edition. This article spurred a snippy billet from the ever-vigilant Kent McNeil, telling me I had not cited him “Reconciliation and Third Party Interests: Tsilhqot’in Nation v. British Columbia” (2010) 8 Indigenous Law Journal 7-25 or John Borrows "Aboriginal Title and Private Property" (2015) 71 SCLR (2d), 91-134.
46 Victoria University of Wellington Law Review, 2015
This article reflects upon themes and foundations of the contemporary legalism attending the reso... more This article reflects upon themes and foundations of the contemporary legalism attending the resolution of aboriginal claims. It opens with a broad description of the historical foundation of that legalism in the imperial prerogative of the Crown and its continuance in the national constitutional systems of Canada and New Zealand. It then considers how that legalism, with its origination in the imperial prerogative and the ongoing comparative dimension associated with that origin, inhabits a recent local example, namely New Zealand's Marine and Coastal Area (Takutai Moana) Act 2011. The article shows how this provision reflects the general features of indigenous rights' jurisprudence as it has emerged over the past 30 years: it carries residual elements of the imperial prerogative and it has a comparative element, yet it is also a peculiarly New Zealand instance that marks a new step in the jurisprudence. This was a festschriften edition to Professor WH "Bill' Atkin whose contribution to the VUWLR has been immense. It was an honour to contribute to this recognition of Bill and Virginia.
16 Victoria University of Wellington Law Review, 1986
The thesis of this article is that there exist two systems of land tenure in New Zealand as a mat... more The thesis of this article is that there exist two systems of land tenure in New Zealand as a matter of law, each independent of the other. In consequence, "aboriginal servitudes" (fishing rights, homage to urupa-burial grounds-flora collection, etc.) continue to affect land throughout the country, irrespective of the indefeasibility of title under the Land Transfer Act. The doctrine of aboriginal title is taken to its logical extent, albeit novel and judicially untested.
Follow-up to audition pieces for Junior Research Fellowship round, 1983. This article won the Ho... more Follow-up to audition pieces for Junior Research Fellowship round, 1983. This article won the Hon. Rex Mason Prize (1985) for best article in a New Zealand legal periodical. With earlier two cited by Justice Williamson in Te Weehi v Regional Fisheries Officer (1986) 1 N.Z.L.R. 682. This is the beginning of the legal road leading to New Zealand's Sea Fisheries Settlement with Maori and the Seabed and Foreshore controversy of early 2000s - where 'the trouble began,' as the Right Hon Michael Cullen once said to me.
14 Victoria University of Wellington Law Review, 1984
Second of a brace written as audition pieces for Cambridge Colleges' Junior Research Fellowship r... more Second of a brace written as audition pieces for Cambridge Colleges' Junior Research Fellowship round, 1983. This article plus its companion in the Canterbury Law Review and another soon after in Otago Law Review were cited by Justice Williamson in Te Weehi v Regional Fisheries Officer (1986) 1 N.Z.L.R. 682. This is the beginning of the legal road leading to New Zealand's Sea Fisheries Settlement with Maori and the Seabed and Foreshore controversy of early 2000s - where 'the trouble began,' as the Right Hon Michael Cullen once said to me.
18 Victoria University of Wellington Law Review, 1988
This follows my earlier articles that established common law basis for (New Zealand) Maori claims... more This follows my earlier articles that established common law basis for (New Zealand) Maori claims against the Crown. In response to my argument (which Jock Brookfield endorsed) the Government committed itself to repealing the offending provisions of the Maori Affairs Act (section 150) however, this article explained how repeal simpliciter would expose the Crown to legal proceedings because limitations did not run for breach of trust/fiduciary duty. Sections 360 and 361 Te Ture Whenua Maori Act 1993 were inserted to prevent that possibility. I was heavily criticized for drawing governmental attention to this consequence, which dawned on me in conversation with David Baragwanath in his chambers.
First of a brace written as audition pieces for Junior Research Fellowship round, 1983. This art... more First of a brace written as audition pieces for Junior Research Fellowship round, 1983. This article plus its companion in the VUWLR and another soon after in Otago Law Review were cited by Justice Williamson in Te Weehi v Regional Fisheries Officer (1986) 1 N.Z.L.R. 682. This is the beginning of the legal road leading to New Zealand's Sea Fisheries Settlement with Maori and the Seabed and Foreshore controversy of early 2000s - where 'the trouble began,' as the Right Hon Michael Cullen once said to me.
This is my 1987 doctoral dissertation, which has been in circulation for years but never made ava... more This is my 1987 doctoral dissertation, which has been in circulation for years but never made available in public domain.
Paper presented at David Nichol Smith Seminar, Auckland, 1993. This paper signaled the historica... more Paper presented at David Nichol Smith Seminar, Auckland, 1993. This paper signaled the historical turn of my work, especially the influence of JGA Pocock.
This is a draft version of an essay on William Pember Reeves and the modish use of utopian litera... more This is a draft version of an essay on William Pember Reeves and the modish use of utopian literature in the last decades of the nineteenth century to locate the NZ colonial polity in time. It appeared in the collection edited by Ian Hunter and Shaunnagh Dorsett TRANSPOSITONS OF EMPIRE. In the last quarter of the 19th century, the colony's past was of so short a time that a Whig future was built imaginatively by Vogel and Reeves to give its constitution temporal legitimacy. I am posting the draft because it shows Ian Hunter graciously and pointedly massaging a cack-handed common lawyer's foray into the wider field of the history of political thought. Ian's perceptive comments stand in their own scholarly right.
This chapter was still in an unformed state (written 2002) and subsequently omitted (at Brian Sim... more This chapter was still in an unformed state (written 2002) and subsequently omitted (at Brian Simpson's recommendation) from published ABORIGINAL SOCIETIES AND THE COMMON LAW. Somewhat of a melisma, it needs correcting and amplifying as well as a more directed thread but it is representative of my thinking at the time.
Draft version of paper published as in P.A. Joseph, ed. Essays on the Constitution (Wellington, N... more Draft version of paper published as in P.A. Joseph, ed. Essays on the Constitution (Wellington, N.Z.: Brookers, 1995) 344-367
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Papers by PG McHugh
Robin Winks in the Preface to Volume 5 of The Oxford History of the British Empire – Historiography (Oxford: Oxford University Press, 1999) at xiii.
This was a festschriften edition to Professor WH "Bill' Atkin whose contribution to the VUWLR has been immense. It was an honour to contribute to this recognition of Bill and Virginia.
Robin Winks in the Preface to Volume 5 of The Oxford History of the British Empire – Historiography (Oxford: Oxford University Press, 1999) at xiii.
This was a festschriften edition to Professor WH "Bill' Atkin whose contribution to the VUWLR has been immense. It was an honour to contribute to this recognition of Bill and Virginia.