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Paul G. Mchugh, Aboriginal Societies and the Common Law: a History of Sovereignty, Status and Self-Determination (Oxford: Oxford University Press, 2005): Ix; 661 Pp

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Paul G. Mchugh, Aboriginal Societies and the Common Law: a History of Sovereignty, Status and Self-Determination (Oxford: Oxford University Press, 2005): Ix; 661 Pp BOOK REVIEW Paul G. McHugh, Aboriginal Societies and the Common Law: A History of Sovereignty, Status and Self-Determination (Oxford: Oxford University Press, 2005): ix; 661 pp. BENJAMIN J. RICHARDSON∗ Aboriginal Societies and the Common Law1 makes an important contribution to scholarship on the history of Aboriginal peoples and the common law legal system. Indeed, this weighty tome verges on the magisterial in its comprehensiveness and depth of analysis. Paul McHugh meticulously traces the encounter between the common law and the Aboriginal peoples of North America and Australasia (Australia and New Zealand), beginning from the early settlement of the New World to the close of the 20th century. Because of their “strong historical correspondence,” McHugh favoured a comparative approach that looked at these jurisdictions together.2 Aboriginal Societies and the Common Law is significant because of the way McHugh carefully illuminates that complex history across several jurisdictions through the lens of the core themes of sovereignty, status and self-determination. The book is a culmination of many years of assiduous scholarship and teaching by McHugh on Aboriginal law.3 Presently, he is a Senior Lecturer at the University of Cambridge and holds a Visiting Professorship at Victoria University of Wellington in New Zealand. Aboriginal Societies and the Common Law is structured in three parts around the headings of “Sovereignty,” “Intermezzo” and “Self- determination.” In the first part, McHugh concentrates on the theme of sovereignty in British imperialism and the position of non-Christian peoples ∗ Professor Benjamin James Richardson, of the Osgoode Hall Law School, teaches and researches Aboriginal law and environmental law. He is the author of Regional Agreements for Indigenous Lands and Cultures in Canada (North Australia Research Unit, 1995), and is co- author of the forthcoming book, Environmental Law for Sustainability: A Critical Reader (Hart Publishing). 1. Paul G. McHugh, Aboriginal Societies and the Common Law: A History of Sovereignty, Status and Self-Determination (Oxford: Oxford University Press, 2005) [Aboriginal Societies and the Common Law]. 2. Ibid. at 2. 3. Among his earlier work, see e.g. P.G. McHugh, MƗori Land Laws of New Zealand: Two Essays (Saskatoon: University of Saskatchewan Native Law Centre, 1983); P.G. McHugh, The MƗori Magna Carta: New Zealand Law and the Treaty of Waitangi (Auckland: Oxford University Press, 1991) [MƗori Magna Carta]. Indigenous Law Journal/Volume 4/Fall 2005 241 242 Indigenous Law Journal Vol. 4 at large in the 17th and 18th centuries. He then focuses on notions of sovereignty and Aboriginal status in North America and Australasia during the 19th century, when assimilation policies emerged in their most devastating form. In the second part, “Intermezzo,” McHugh considers Aboriginal peoples’ status in international law in the “interval” period between the late 19th century and recent decades. It was a period that helped lay the conditions for some of the more recent domestic legal changes for Aboriginal peoples. The theme of self-determination occupies the final part of the book where McHugh analyzes the movement towards greater recognition and integration of Aboriginal rights since the 1970s. To McHugh, the historical basis of Aboriginal peoples’ relations with the common law system is best understood through the enduring themes of sovereignty, status and, more recently, self-determination. He suggests, “as the tribal societies variously engaged with and, eventually, were overwhelmed by the colonialist policy, the common law legal system provided the sole means through which the tribes’ political integrity and other aspects of their tribal culture … might be peacefully vindicated.”4 McHugh sees these themes as best able to illuminate the various ways the common law legal system responded to the resistance and continuation of Aboriginal society and political organization. On sovereignty, he is interested in how the Anglophone constitutional order accommodated the Aboriginal peoples. How were the pre-existing systems of tribal governance to be subordinated to, or reconciled with, the sovereignty of the imperial Crown? On status, McHugh enquires as to the extent the common law systems recognized the Aboriginal polity and its members. And, on self- determination, he explores whether and how those legal systems abandoned the assimilation policies to recognize and facilitate the cultural, economic and political integrity of Aboriginal nations. McHugh begins in his Introduction by outlining a preferred research method that emphasizes the distinct roles of the lawyer and historian.5 To McHugh, while they use the same subject matter, “the lawyer seeks to resolve contemporary problems whereas the historian seeks to explain bygone contingency.”6 McHugh is critical of the tendency of some contemporary judges and scholars to conflate these two roles. Thus, in relation to recent Aboriginal land title claims considered by Commonwealth courts, McHugh observes that, “the concern of [A]boriginal title litigation was not with accurate historical depiction but with marshalling certain facts from the past as to sanction a contemporary state of affairs.”7 McHugh is concerned that this late 20th century doctrine of Aboriginal title is being 4. Aboriginal Societies and the Common Law, supra note 1 at 1. 5. Ibid. at 1-61. 6. Ibid. at 20. 7. Ibid. at 21. Fall 2005 Book Review 243 “applied retrospectively as though it described historical truth.”8 Historic cases such as the Mohegan dispute heard by the Privy Council,9 argues McHugh, are “legal moments [that have] become over-parted, imbued with significance well beyond their actual importance in their own time.”10 The result is that “the legal history is baked largely, if not entirely, in a late twentieth century oven.”11 McHugh argues that common law Aboriginal title principles were not in fact “consciously present” in the “minds of historical actors,” especially the colonial officials.12 To suggest otherwise, warns McHugh, amounts to a “practical use of the past,” and “it is not history properly understood.”13 Aboriginal Societies and the Common Law thus aims to properly illuminate that history. McHugh portrays how the common law legal systems, in their pre-positivist form before the late 19th century, conceived of Aboriginal peoples in relation to the settler societies. In its pre-modern, pre-positivist form, McHugh argues that the common law was not an externally imposed set of Austinian rules and commands, but “was woven into a general worldview that saw law, with religion, as the reflection of an integrated normative order immanent in the community itself.”14 In the formative early years of British imperial rule and subjugation of Aboriginal peoples, courts and legal rules played a different and less prominent role in colonial legal affairs, which tended to be built around a “fluid combination of imperial practice expressed formally through royal instrumentation” and the discretionary authority of the governors and other colonial functionaries.15 Having laid out his research method, McHugh then examines the nature of British imperialism and the impact of its shifting notions of sovereignty on Aboriginal and other non-Western peoples in the 17th and 18th centuries. McHugh argues that in this formative era, “the notion of sovereignty … remained a substantially feudal one, conceiving Crown imperium (right of governance) in [a] jurisdictional rather than [in a] absolutist and territorial sense ….”16 The latter concepts, McHugh shows, did not fully emerge in British legal thought and practice until the 19th century as the settler-states in 8. Ibid. 9. Some commentators argue that the Privy Council, in the long-running case of Mohegan Indians, by their Guardians v. The Governor and Company of Connecticut (1705-1773) [unreported], determined that Native nations residing on reserved lands within North American colonies enjoyed rights of sovereignty: see M.D. Walters, “Mohegan Indians v. Connecticut (1705-1773) and the Legal Status of Aboriginal Customary Laws and Government in British North America” (1995) 33:4 Osgoode Hall L.J. 785. 10. Aboriginal Societies and the Common Law, supra note 1 at 26. 11. Ibid. at 25. 12. Ibid. at 21. 13. Ibid. 14. Ibid. at 29. 15. Ibid. at 32-34, 43. 16. Ibid. at 61. 244 Indigenous Law Journal Vol. 4 North America and Australasia asserted ever-greater control over Aboriginal peoples within their ostensible jurisdiction. From the late 19th century, as law took on the characteristics of its contemporary positivist form, McHugh shows how, at first, an “overwhelming legalism smother[ed]” Aboriginal peoples, which “designated and pronounced their destiny to assimilate into versions of the industrious society.”17 In this era, which he describes as the “Empires of Uniformity,” law served to dissolve collective landholdings and tribal structures, and replace them with an “overweening state paternalism.”18 McHugh steers away from simplistic accounts of legal policy towards Aboriginal peoples, though some of his analyses may be controversial for some readers. For example, while the era of assimilation policies is appropriately condemned, McHugh suggests it “was not as all-bad as is tended to be depicted.”19 For example, “some of its tenets, such as equal citizenship rights (including social welfare and protection from racial discrimination), equality in standards of living, and equal pay for equal work involved important rights for
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