Paul McHugh
Encyclopedia
Paul McHugh is a New Zealand
academic lawyer. He teaches at the University of Cambridge
where he is a Reader
in Law and Fellow of Sidney Sussex College.
(Hons I) from Victoria University of Wellington
, LLM
(Saskatchewan
), and obtained his PhD
at Cambridge with his dissertation "The aboriginal rights of the New Zealand Maori at common law" (which was awarded a Yorke Prize
in 1988).
aboriginal rights, a topic on which he has published extensively. He is recognised as an authority on the legal status of tribal peoples in North America and Australasia; as both a doctrinal scholar and as a legal historian, as well as writer on the 'politics of historiography.'
His work on the doctrine of aboriginal title in New Zealand argued that there remained unextinguished Māori rights around the coastline. The High Court
accepted and cited his work in the Te Weehi case (1986), leading to a series of cases in which New Zealand courts applied Māori customary law, recognising it as the basis for Māori rights and exemption from the regulatory regime of the Fisheries Act 1988. His early academic reputation rests upon his pioneering work on the status of the common law doctrine of aboriginal title, a field to which he returned after the Ngati Apa case (2003) reactivated this debate in New Zealand and led to the foreshore and seabed controversy. He is recognised as a leading authority on aboriginal title throughout the common law world, and is associated with the view that it was primarily a legal argument devised (in western Canada initially) during the early 1970s and following decade to deal with the inaction of the political branches (their incapacity to legislate comprehensive land rights/claims regimes). McHugh was amongst a small group of lawyer/scholars in this period (Brian Slattery, Kent McNeil, Henry Reynolds, Barbara Hocking, Richard Bartlett, Tom Berger) to package aboriginal title in a manner that became palatable to courts. He has been especially associated with its New Zealand dimension, as Justice Willamson acknowledged in Te Weehi.
McHugh published The Māori Magna Carta (1991), which for the first time explained and analysed the range of laws specifically affecting the Māori in light of the Treaty of Waitangi
.
In the 1990s his work began incorporating a comparativist
dimension, culminating in the publication in 2004 of Aboriginal societies and the common law: a history of sovereignty, status and self-determination. The book picks up themes of his work in the previous decade, particularly the intellectual influence of John Pocock (Johns Hopkins University
) and R. A. Sharp (Auckland, writer of Justice and the Maori (1990 and 1997)). In particular McHugh argues for the historicisation not just of legal doctrine
, but of the notion of law itself, so that the history of the common law's encounter with tribal societies
becomes also an expression of the change in the nature and modalities of legal thought. Further, the first half of the book considers the notion of sovereignty and how it developed in the Crown's dealings with non-Christian and tribal peoples from the medieval period
. The second half of the book considers the modern history of aboriginal rights, once they had been admitted into what he calls the 'common-law rights-place' as a result of key court judgments. All common-law jurisdictions (Canada
in 1973; the United States
in 1978; New Zealand in 1986–91; and Australia
in 1992 and 1996) experienced the impact of major court judgments dramatically reconfiguring state relations with the tribes. Thrust into the rights-place aboriginal peoples
have had to develop the legalism
of life inside that habitat. This has presented issues of what McHugh terms 'rights-management' (governance) and '-integration' (ongoing harmonisation/integration of aboriginal rights with other rights such as those of municipalities, gender, resource licensees, environment etc.).
In a series of papers from 1995, McHugh began considering the historiographical properties of legal thought and method and legal process, with Andrew Sharp initiating a debate in New Zealand and Australia that has been continued by other academics and writers such as John Pocock (reproduced in his collection of essays "The discovery of islands" in 2005), W. H. Oliver, Bain Attwood and Giselle Byrnes. The essay collection "Histories Power and Loss" brings this work together, anchored by Pocock's essay.
McHugh has also considered the constitutional basis of Crown relations with Māori outside of a claims-centred mode of engagement, a commissioned paper for the NZ Department of Justice published with another, on a similar theme by Ken Coates
as "Aboriginal Identity and Relations in North America and Australasia". This paper, with its argument for the recognition of Crown and tribe in ongoing relations from which exit is not possible and finality and closure illusory, influenced the move towards more 'relational' approaches in the public sphere where Māori issues were to be seen in terms of living relationships rather than a sequence of problems to be eliminated. The language of closure and exit that dominated Pākehā
(European
) discourse of Māori claims was predicated upon an outcome – Māori mergence into a culturally undifferentiated populace – that would never happen and which, in any event, was contrary to the Treaty itself (and, he might have added, the plain demographic pattern which strengthens rather than diminishes Polynesian profile).
He has also written of the nature of constitutional memory and its manifestation in the New Zealand setting, as well as argued for a more sophisticated historiography of New Zealand legal history, a 'tradition' that he believes has yet to take root.
In 2004–06 he returned to common law aboriginal title in the wake of the New Zealand foreshore and seabed controversy
when the Court applied common law principles following the arguments pioneered in his published work in the 1980s He appeared as an independent witness before the Waitangi Tribunal
(2004) and the Select Committee hearings (2005) and toured the country (under the aegis
of the New Zealand Law Society
) explaining the legal position. In 2010 he appeared as expert witness before the Waitangi Tribunal on the Te Tii Marae, Kerikeri, explaining the legal basis of the British annexation of New Zealand.
He has also been retained by the Canadian Department of Justice
as an independent witness in several major land claims.
His book Aboriginal Title will be published in 2011 (Oxford University Press). The book is an intellectual history of the rise, spread and impact of the common law doctrine. McHugh looks critically at the early formation and conceptualisation of the doctrine in western Canada through its adoption by courts there, in New Zealand and Australia (as native title), its subsequent elaboration in Canadian and Australian case law – the busiest jurisdictions – through a proprietary paradigm located primarily (and more and more constrictively) inside adjudicative processes. From the millennium, forms of the doctrine also came to be applied by courts in Belize, Malaysia and southern Africa. The doctrine also influenced the rapid development during the 1990s and after of the norms of indigenous peoples rights at international law. He also considers the issues of inter-disciplinary thought and practice 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.
He has published also on constitutional identity in Anglo settler societies in the late-nineteenth and early-twentieth century.
). As of 2006, his civil partner is Andrew Hardwick, a film producer. His son Frankie was born 5 November 2010.
New Zealand
New Zealand is an island country in the south-western Pacific Ocean comprising two main landmasses and numerous smaller islands. The country is situated some east of Australia across the Tasman Sea, and roughly south of the Pacific island nations of New Caledonia, Fiji, and Tonga...
academic lawyer. He teaches at the University of Cambridge
University of Cambridge
The University of Cambridge is a public research university located in Cambridge, United Kingdom. It is the second-oldest university in both the United Kingdom and the English-speaking world , and the seventh-oldest globally...
where he is a Reader
Reader (academic rank)
The title of Reader in the United Kingdom and some universities in the Commonwealth nations like Australia and New Zealand denotes an appointment for a senior academic with a distinguished international reputation in research or scholarship...
in Law and Fellow of Sidney Sussex College.
Education
McHugh graduated LL.B.Bachelor of Laws
The Bachelor of Laws is an undergraduate, or bachelor, degree in law originating in England and offered in most common law countries as the primary law degree...
(Hons I) from Victoria University of Wellington
Victoria University of Wellington
Victoria University of Wellington was established in 1897 by Act of Parliament, and was a former constituent college of the University of New Zealand. It is particularly well known for its programmes in law, the humanities, and some scientific disciplines, but offers a broad range of other courses...
, LLM
Master of Laws
The Master of Laws is an advanced academic degree, pursued by those holding a professional law degree, and is commonly abbreviated LL.M. from its Latin name, Legum Magister. The University of Oxford names its taught masters of laws B.C.L...
(Saskatchewan
University of Saskatchewan
The University of Saskatchewan is a Canadian public research university, founded in 1907, and located on the east side of the South Saskatchewan River in Saskatoon, Saskatchewan, Canada. An "Act to establish and incorporate a University for the Province of Saskatchewan" was passed by the...
), and obtained his PhD
Doctor of Philosophy
Doctor of Philosophy, abbreviated as Ph.D., PhD, D.Phil., or DPhil , in English-speaking countries, is a postgraduate academic degree awarded by universities...
at Cambridge with his dissertation "The aboriginal rights of the New Zealand Maori at common law" (which was awarded a Yorke Prize
Yorke Prize
The Yorke Prize is awarded annually by the Faculty of Law at the University of Cambridge for an essay of between 30,000 and 100,000 words on a legal subject, including the history, analysis, administration and reform of law....
in 1988).
Career
McHugh's work has primarily been in the field of common-lawCommon law
Common law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...
aboriginal rights, a topic on which he has published extensively. He is recognised as an authority on the legal status of tribal peoples in North America and Australasia; as both a doctrinal scholar and as a legal historian, as well as writer on the 'politics of historiography.'
His work on the doctrine of aboriginal title in New Zealand argued that there remained unextinguished Māori rights around the coastline. The High Court
High Court of New Zealand
The High Court of New Zealand is a superior court of New Zealand. It was established in 1841 and known as the Supreme Court of New Zealand until 1980....
accepted and cited his work in the Te Weehi case (1986), leading to a series of cases in which New Zealand courts applied Māori customary law, recognising it as the basis for Māori rights and exemption from the regulatory regime of the Fisheries Act 1988. His early academic reputation rests upon his pioneering work on the status of the common law doctrine of aboriginal title, a field to which he returned after the Ngati Apa case (2003) reactivated this debate in New Zealand and led to the foreshore and seabed controversy. He is recognised as a leading authority on aboriginal title throughout the common law world, and is associated with the view that it was primarily a legal argument devised (in western Canada initially) during the early 1970s and following decade to deal with the inaction of the political branches (their incapacity to legislate comprehensive land rights/claims regimes). McHugh was amongst a small group of lawyer/scholars in this period (Brian Slattery, Kent McNeil, Henry Reynolds, Barbara Hocking, Richard Bartlett, Tom Berger) to package aboriginal title in a manner that became palatable to courts. He has been especially associated with its New Zealand dimension, as Justice Willamson acknowledged in Te Weehi.
McHugh published The Māori Magna Carta (1991), which for the first time explained and analysed the range of laws specifically affecting the Māori in light of the Treaty of Waitangi
Treaty of Waitangi
The Treaty of Waitangi is a treaty first signed on 6 February 1840 by representatives of the British Crown and various Māori chiefs from the North Island of New Zealand....
.
In the 1990s his work began incorporating a comparativist
Comparative law
Comparative law is the study of differences and similarities between the law of different countries. More specifically, it involves study of the different legal systems in existence in the world, including the common law, the civil law, socialist law, Islamic law, Hindu law, and Chinese law...
dimension, culminating in the publication in 2004 of Aboriginal societies and the common law: a history of sovereignty, status and self-determination. The book picks up themes of his work in the previous decade, particularly the intellectual influence of John Pocock (Johns Hopkins University
Johns Hopkins University
The Johns Hopkins University, commonly referred to as Johns Hopkins, JHU, or simply Hopkins, is a private research university based in Baltimore, Maryland, United States...
) and R. A. Sharp (Auckland, writer of Justice and the Maori (1990 and 1997)). In particular McHugh argues for the historicisation not just of legal doctrine
Legal doctrine
A legal doctrine is a framework, set of rules, procedural steps, or test, often established through precedent in the common law, through which judgments can be determined in a given legal case. A doctrine comes about when a judge makes a ruling where a process is outlined and applied, and allows...
, but of the notion of law itself, so that the history of the common law's encounter with tribal societies
Tribe
A tribe, viewed historically or developmentally, consists of a social group existing before the development of, or outside of, states.Many anthropologists use the term tribal society to refer to societies organized largely on the basis of kinship, especially corporate descent groups .Some theorists...
becomes also an expression of the change in the nature and modalities of legal thought. Further, the first half of the book considers the notion of sovereignty and how it developed in the Crown's dealings with non-Christian and tribal peoples from the medieval period
Middle Ages
The Middle Ages is a periodization of European history from the 5th century to the 15th century. The Middle Ages follows the fall of the Western Roman Empire in 476 and precedes the Early Modern Era. It is the middle period of a three-period division of Western history: Classic, Medieval and Modern...
. The second half of the book considers the modern history of aboriginal rights, once they had been admitted into what he calls the 'common-law rights-place' as a result of key court judgments. All common-law jurisdictions (Canada
Canada
Canada is a North American country consisting of ten provinces and three territories. Located in the northern part of the continent, it extends from the Atlantic Ocean in the east to the Pacific Ocean in the west, and northward into the Arctic Ocean...
in 1973; the United States
United States
The United States of America is a federal constitutional republic comprising fifty states and a federal district...
in 1978; New Zealand in 1986–91; and Australia
Australia
Australia , officially the Commonwealth of Australia, is a country in the Southern Hemisphere comprising the mainland of the Australian continent, the island of Tasmania, and numerous smaller islands in the Indian and Pacific Oceans. It is the world's sixth-largest country by total area...
in 1992 and 1996) experienced the impact of major court judgments dramatically reconfiguring state relations with the tribes. Thrust into the rights-place aboriginal peoples
Indigenous peoples
Indigenous peoples are ethnic groups that are defined as indigenous according to one of the various definitions of the term, there is no universally accepted definition but most of which carry connotations of being the "original inhabitants" of a territory....
have had to develop the legalism
Legalism
Legalism may refer to:In philosophy:* Legalism , Chinese political philosophy based on the idea that a highly efficient and powerful government is the key to social order....
of life inside that habitat. This has presented issues of what McHugh terms 'rights-management' (governance) and '-integration' (ongoing harmonisation/integration of aboriginal rights with other rights such as those of municipalities, gender, resource licensees, environment etc.).
In a series of papers from 1995, McHugh began considering the historiographical properties of legal thought and method and legal process, with Andrew Sharp initiating a debate in New Zealand and Australia that has been continued by other academics and writers such as John Pocock (reproduced in his collection of essays "The discovery of islands" in 2005), W. H. Oliver, Bain Attwood and Giselle Byrnes. The essay collection "Histories Power and Loss" brings this work together, anchored by Pocock's essay.
McHugh has also considered the constitutional basis of Crown relations with Māori outside of a claims-centred mode of engagement, a commissioned paper for the NZ Department of Justice published with another, on a similar theme by Ken Coates
Ken Coates
Kenneth Sidney Coates was a British politician and writer. He chaired the Bertrand Russell Peace Foundation and edited The Spokesman, the BRPF magazine launched in March 1970. He was a Labour Party Member of the European Parliament from 1989 to 1999...
as "Aboriginal Identity and Relations in North America and Australasia". This paper, with its argument for the recognition of Crown and tribe in ongoing relations from which exit is not possible and finality and closure illusory, influenced the move towards more 'relational' approaches in the public sphere where Māori issues were to be seen in terms of living relationships rather than a sequence of problems to be eliminated. The language of closure and exit that dominated Pākehā
Pakeha
Pākehā is a Māori language word for New Zealanders who are "of European descent". They are mostly descended from British and to a lesser extent Irish settlers of the nineteenth and twentieth centuries, although some Pākehā have Dutch, Scandinavian, German, Yugoslav or other ancestry...
(European
New Zealand European
The term New Zealand European refers to New Zealanders of European descent who identify as New Zealand Europeans rather than some other ethnic group...
) discourse of Māori claims was predicated upon an outcome – Māori mergence into a culturally undifferentiated populace – that would never happen and which, in any event, was contrary to the Treaty itself (and, he might have added, the plain demographic pattern which strengthens rather than diminishes Polynesian profile).
He has also written of the nature of constitutional memory and its manifestation in the New Zealand setting, as well as argued for a more sophisticated historiography of New Zealand legal history, a 'tradition' that he believes has yet to take root.
In 2004–06 he returned to common law aboriginal title in the wake of the New Zealand foreshore and seabed controversy
New Zealand foreshore and seabed controversy
The New Zealand foreshore and seabed controversy is a debate in the politics of New Zealand. It concerns the ownership of the country's foreshore and seabed, with many Māori groups claiming that Māori have a rightful claim to title. These claims are based around historical possession and the Treaty...
when the Court applied common law principles following the arguments pioneered in his published work in the 1980s He appeared as an independent witness before the Waitangi Tribunal
Waitangi Tribunal
The Waitangi Tribunal is a New Zealand permanent commission of inquiry established under the Treaty of Waitangi Act 1975...
(2004) and the Select Committee hearings (2005) and toured the country (under the aegis
Aegis
An aegis is a large collar or cape worn in ancient times to display the protection provided by a high religious authority or the holder of a protective shield signifying the same, such as a bag-like garment that contained a shield. Sometimes the garment and the shield are merged, with a small...
of the New Zealand Law Society
New Zealand Law Society
The New Zealand Law Society is the parent body for barristers and solicitors in New Zealand. It was established in 1869, and regulates all lawyers practising in New Zealand...
) explaining the legal position. In 2010 he appeared as expert witness before the Waitangi Tribunal on the Te Tii Marae, Kerikeri, explaining the legal basis of the British annexation of New Zealand.
He has also been retained by the Canadian Department of Justice
Department of Justice (Canada)
The purpose of the Department of Justice is to ensure that the Canadian justice system is fair, accessible and efficient. The Department also represents the Canadian government in legal matters...
as an independent witness in several major land claims.
His book Aboriginal Title will be published in 2011 (Oxford University Press). The book is an intellectual history of the rise, spread and impact of the common law doctrine. McHugh looks critically at the early formation and conceptualisation of the doctrine in western Canada through its adoption by courts there, in New Zealand and Australia (as native title), its subsequent elaboration in Canadian and Australian case law – the busiest jurisdictions – through a proprietary paradigm located primarily (and more and more constrictively) inside adjudicative processes. From the millennium, forms of the doctrine also came to be applied by courts in Belize, Malaysia and southern Africa. The doctrine also influenced the rapid development during the 1990s and after of the norms of indigenous peoples rights at international law. He also considers the issues of inter-disciplinary thought and practice 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.
He has published also on constitutional identity in Anglo settler societies in the late-nineteenth and early-twentieth century.
Family
His mother was Pauline Mary McHugh (died 1991). His father was Ashley George McHugh (died 1999), who became Deputy Chief Judge of the Māori Land Court and later chaired the Waitangi Tribunal's hearing of the Ngāi Tahu Claim (see Treaty of Waitangi claims and settlementsTreaty of Waitangi claims and settlements
Treaty of Waitangi claims and settlements have been a significant feature of New Zealand race relations and politics since 1975. Over the last 30 years, New Zealand governments have increasingly provided formal legal and political opportunity for Māori to seek redress for breaches by the Crown of...
). As of 2006, his civil partner is Andrew Hardwick, a film producer. His son Frankie was born 5 November 2010.