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Aboriginal TitleThe Modern Jurisprudence of Tribal Land Rights$
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P.G. McHugh

Print publication date: 2011

Print ISBN-13: 9780199699414

Published to Oxford Scholarship Online: January 2012

DOI: 10.1093/acprof:oso/9780199699414.001.0001

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Common Law Aboriginal Title and its Pipers at the Gate of Dawn—Gestation (1970s) and Breakthrough (1980s)

Common Law Aboriginal Title and its Pipers at the Gate of Dawn—Gestation (1970s) and Breakthrough (1980s)

Chapter:
(p.25) 2 Common Law Aboriginal Title and its Pipers at the Gate of Dawn—Gestation (1970s) and Breakthrough (1980s)
Source:
Aboriginal Title
Author(s):

Dr. P. G. McHugh

Publisher:
Oxford University Press
DOI:10.1093/acprof:oso/9780199699414.003.0002

This chapter looks at key predicates of the doctrine as it began to be articulated, in particular its emphasis upon the role of the Crown and the core distinction between imperium (sovereignty) and dominium (ownership). It looks at the traditional non-receptivity of courts to tribal land claims and their depiction of these as encompassed by a non-justiciable Crown guardianship. With the political impasse of the post-assimilation era of the 1970s legal scholars turned to the courts, assembling the legal argumentation to reverse their previous pattern. The chapter looks at the pre-history and chronological sequence of breakthrough cases in Canada, New Zealand, and Australia by which aboriginal title burst onto the legal scene and drove governments towards new and unaccustomed as well as legally compelled policies of accommodation. Courts became poised to elaborate the tribal proprietary rights and as new brokers of the tribes relations with governments.

Keywords:   Aboriginal title, justiciable, Calder, Mabo No 2, Te Weehi, terra nullius, race, aboriginality

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