Paul McHugh (born
Gisborne) is a
New Zealand
New Zealand ( mi, Aotearoa ) is an island country in the southwestern Pacific Ocean. It consists of two main landmasses—the North Island () and the South Island ()—and over 700 smaller islands. It is the sixth-largest island count ...
academic lawyer. He teaches at the
University of Cambridge
, mottoeng = Literal: From here, light and sacred draughts.
Non literal: From this place, we gain enlightenment and precious knowledge.
, established =
, other_name = The Chancellor, Masters and Schola ...
where he is a Professor in Law and Legal History and Fellow of
Sidney Sussex College
Sidney Sussex College (referred to informally as "Sidney") is a constituent college of the University of Cambridge in England. The College was founded in 1596 under the terms of the will of Frances Sidney, Countess of Sussex (1531–1589), wife ...
.
[Profile at the University of Cambridge]
Education
He graduated
LL.B.
Bachelor of Laws ( la, Legum Baccalaureus; LL.B.) is an undergraduate law degree in the United Kingdom and most common law jurisdictions. Bachelor of Laws is also the name of the law degree awarded by universities in the People's Republic of Chi ...
(Hons I) from
Victoria University of Wellington
Victoria University of Wellington ( mi, Te Herenga Waka) is a university in Wellington, New Zealand. It was established in 1897 by Act of Parliament, and was a constituent college of the University of New Zealand.
The university is well know ...
, LLM (
Saskatchewan
Saskatchewan ( ; ) is a Provinces and territories of Canada, province in Western Canada, western Canada, bordered on the west by Alberta, on the north by the Northwest Territories, on the east by Manitoba, to the northeast by Nunavut, and on t ...
), 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
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, "of exceptional quality ...
in 1988). It will be republished by Institute of Post-Treaty Settlements Office as a classic influential text.
Career
McHugh's work has primarily been in the field of
common-law
In law, common law (also known as judicial precedent, judge-made law, or case law) is the body of law created by judges and similar quasi-judicial tribunals by virtue of being stated in written opinions."The common law is not a brooding omnipresen ...
aboriginal rights
Indigenous rights are those rights that exist in recognition of the specific condition of the Indigenous peoples. This includes not only the most basic human rights of physical survival and integrity, but also the Indigenous land rights, 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
Aboriginal title is a common law doctrine that the land rights of indigenous peoples to customary tenure persist after the assumption of sovereignty under settler colonialism. The requirements of proof for the recognition of aboriginal title, ...
in New Zealand argued that there remained unextinguished Māori rights
Māori or Maori can refer to:
Relating to the Māori people
* Māori people of New Zealand, or members of that group
* Māori language, the language of the Māori people of New Zealand
* Māori culture
* Cook Islanders, the Māori people of the C ...
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. The Court's judgments led to the foreshore and seabed controversy (2003-4) which fundamentally changed the course of New Zealand politics and ruptured the Maori Rātana
The Rātana movement ( mi, Te Haahi Rātana) is a church and pan-''iwi'' political movement founded by Tahupōtiki Wiremu Rātana in early 20th-century New Zealand. The Rātana Church has its headquarters at the settlement of Rātana Pā near W ...
movement's longstanding alliance with the Labour Party. McHugh is recognised as a leading authority on common law aboriginal title and the legal character of tribal peoples' property rights throughout the common law world. It is believed the New Zealand Government's willingness to settle the Maori commercial sea fisheries claim (1992) was directly attributable to McHugh's work and, associated with it, high-placed anxiety about an 'activist' New Zealand Court of Appeal. The President Robin Cooke, Baron Cooke of Thorndon
Robin Brunskill Cooke, Baron Cooke of Thorndon (9 May 1926 – 30 August 2006) was a New Zealand judge and later a British Law Lord and member of the Judicial Committee of the Privy Council. He is widely considered one of New Zealand's most ...
, as he became (1995) was known to hold a personal copy of McHugh's dissertation and in conversation with him as well as having shown judicial mettle in the ''Maori Council'' cases of the time. Though based upon the claim to present unextinguished rights (rather than those lost by colourable Crown conduct in the past) this was the country's first multimillion-dollar settlement of Maori claims in the modern era, and a foretaste of the claims settlement processes and asset transfers that followed and as contemplated by the ''Maori Council'' cases. McHugh is associated with the view that common law aboriginal title 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 during the 1980s (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'' and as his influence both upon the activation and course of the foreshore and seabed controversy showed. He made considerable public lectures and practitioners workshops in New Zealand during this period, and his work was regarded as influential at the highest political levels (including a half-day presentation to the Parliamentary Select Committee and Waitangi Tribunal). As the controversy waged (particularly during the lifetime of the Clark premiership and the Fifth Labour Government of New Zealand
The Fifth Labour Government of New Zealand was the List of New Zealand governments, government of New Zealand from 10 December 1999 to 19 November 2008. New Zealand Labour Party, Labour Party leader Helen Clark negotiated a coalition with Jim A ...
redrawing the country's political map), his published work returned to the more doctrinal orientation it had taken during his early career before his so-called 'Pocockian turn' described in Mark Hickford's important book ''Lords of the Land: Indigenous Property Rights and the Jurisprudence of Empire'' (Oxford University Press, Oxford, 2011) at 221-3 and Bernard Cadogan 'Treaty and Method' (online a
this link
.
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
The Treaty of Waitangi ( mi, Te Tiriti o Waitangi) is a document of central importance to the history, to the political constitution of the state, and to the national mythos of New Zealand. It has played a major role in the treatment of the M ...
.
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
Brigadier-General John Pocock (died April 1732) was a British Army officer and a Colonel of the King's Regiment of Foot.
Life
Pocock obtained a commission in a regiment of foot in June 1695, and having signalised himself in the wars of Queen ...
(Johns Hopkins University
Johns Hopkins University (Johns Hopkins, Hopkins, or JHU) is a private university, private research university in Baltimore, Maryland. Founded in 1876, Johns Hopkins is the oldest research university in the United States and in the western hem ...
) 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
A legal doctrine is a framework, set of rules, Procedural law, procedural steps, or Test (law), test, often established through precedent in the common law, through which judgments can be determined in a given legal case. A doctrine comes about w ...
, but of the notion of law itself, so that the history of the common law's encounter with tribal societies
The term tribe is used in many different contexts to refer to a category of human social group. The predominant worldwide usage of the term in English is in the discipline of anthropology. This definition is contested, in part due to conflic ...
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
A crown is a traditional form of head adornment, or hat, worn by monarchs as a symbol of their power and dignity. A crown is often, by extension, a symbol of the monarch's government or items endorsed by it. The word itself is used, partic ...
's dealings with non-Christian and tribal peoples from the medieval period
In the history of Europe, the Middle Ages or medieval period lasted approximately from the late 5th to the late 15th centuries, similar to the post-classical period of global history. It began with the fall of the Western Roman Empire a ...
. 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
Indigenous peoples are culturally distinct ethnic groups whose members are directly descended from the earliest known inhabitants of a particular geographic region and, to some extent, maintain the language and culture of those original people ...
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
Historiography is the study of the methods of historians in developing history as an academic discipline, and by extension is any body of historical work on a particular subject. The historiography of a specific topic covers how historians hav ...
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. A more explicitly 'historical' method appears in his published work from this time with its insistence upon the careful historicisation - the placing in time and place - not only of legal doctrine but also of the notions of legal obligation and the exercise of public authority at play in that setting. Hickford (2011) and Cadogan (2011) are clear that McHugh's position towards the history of common law 'aboriginal rights' is comfortably inside the mainstream of disciplinary practice in the writing of the history of political thought as are important scholars in Australia such as Bain Attwood and Ian Hunter. Whilst uncontroversial and accepted intellectual fare in Australasia, McHugh's critique of whiggish historical method in the conduct of contemporary aboriginal claims-making in the courts and the shaping of historical narrative according to the predicates of present-day legal doctrine has become more controversial in Canada ee 'Indigenous Rights Litigation, Legal History, and the Role of Experts' (Kent McNeil) 2014 ''Saskatchewan Law Review'' alongside McHugh's essay As a result of recent judicial interpretation of section 35 of the Canada Act (the 'aboriginal rights' provision) First Nations are bringing historical claims before Canadian courts. In New Zealand this type of aboriginal claim is subject to political resolution with limited court intervention whilst in Australia the federal Government does not admit such claims with the Native Title Act 1993 processes being limited to accommodation of existing property and related claims.
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
Kenneth Sidney Coates (16 September 1930 – 27 June 2010) 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 Memb ...
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
Pākehā (or Pakeha; ; ) is a Māori term for New Zealanders primarily of European descent. Pākehā is not a legal concept and has no definition under New Zealand law. The term can apply to fair-skinned persons, or to any non-Māori New Ze ...
(European
European, or Europeans, or Europeneans, may refer to:
In general
* ''European'', an adjective referring to something of, from, or related to Europe
** Ethnic groups in Europe
** Demographics of Europe
** European cuisine, the cuisines of Europe ...
) 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
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 c ...
when the Court applied common law principles following the arguments pioneered in his published work in the 1980s[See "Aboriginal title in New Zealand courts" (1984), ''University of Canterbury Law Review'', 2, 235–65; and "The legal status of Maori fishing rights in tidal water" (1984), ''Victoria University of Wellington Law Review'' 52, 247–7.] He appeared as an independent witness before the Waitangi Tribunal
The Waitangi Tribunal (Māori: ''Te Rōpū Whakamana i te Tiriti o Waitangi'') is a New Zealand permanent commission of inquiry established under the Treaty of Waitangi Act 1975. It is charged with investigating and making recommendations on cla ...
(2004) and the Select Committee hearings (2005) and toured the country (under the aegis
The aegis ( ; grc, αἰγίς ''aigís''), as stated in the ''Iliad'', is a device carried by Athena and Zeus, variously interpreted as an animal skin or a shield and sometimes featuring the head of a Gorgon. There may be a connection with a d ...
of the New Zealand Law Society
The New Zealand Law Society ( mi, Te Kāhui Ture o Aotearoa) is the parent body for barristers and solicitors in New Zealand. It was established in 1869, and regulates all lawyers practising in New Zealand. Membership of the society is voluntary, ...
) 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
The Department of Justice (french: Ministère de la Justice) is a department of the Government of Canada that represents the Canadian government in legal matters. The Department of Justice works to ensure that Canada's justice system is as fair, ...
as an independent witness in several major land claims.
His book ''Aboriginal Title
Aboriginal title is a common law doctrine that the land rights of indigenous peoples to customary tenure persist after the assumption of sovereignty under settler colonialism. The requirements of proof for the recognition of aboriginal title, ...
'' was published in 2011 (Oxford University Press). The book is an intellectual history of the rise, spread and impact of the common law doctrine into the modern era of rights and their enforcement by courts. McHugh looks at the gestation, early formation and conceptualisation of the doctrine in western Canada through its articulation by scholars, 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 looks at how the courts' acceptance of the doctrine absorbed elements of surrounding public law values including norms of non-discrimination (absorbed from the international law covenants and cvil rights movements), judicial wariness of unabridged executive discretion (the platform for the rise of common law judicial review from the 1970s), the rise of public interest litigation and revised attitudes and practices towards amenability of the Crown to court proceedings. 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. He is working on a new book (2016) Unremitting Solicitude': Crown, Tribes and Law in the Victorian Era''. This develops the underlying theme of his 2004 book calling for the careful historicisation not only of legal doctrine but also and more fundamentally of the notion of law and the exercise of public authority. He is in considerable demand internationally to give public lectures and workshops on the rights of aboriginal peoples in both an historical and present-day setting, in Canada and New Zealand especially, and is regarded as one of the most influential scholars in the field.
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
The Māori Land Court (Māori: Te Kōti Whenua Māori) is the specialist court of record in New Zealand that hears matters relating to Māori land.
Māori Land Court history
The Māori Land Court was established in 1865 as the Native Land Cou ...
and later chaired the Waitangi Tribunal's hearing of the Ngāi Tahu Claim (see Treaty of Waitangi claims and settlements
Claims and settlements under the Treaty of Waitangi have been a significant feature of New Zealand politics since the Treaty of Waitangi Act 1975 and the Waitangi Tribunal that was established by that act to hear claims. Successive governments h ...
). As of 2006, his civil partner
Civil partnership in the United Kingdom is a form of civil union between couples open to both same-sex couples and opposite-sex couples.
History
Civil partnerships were introduced for same-sex couples under the terms of the Civil Partnershi ...
is Andrew Hardwick, a film producer. His son Frankie was born November 2010.
Notes and references
{{DEFAULTSORT:McHugh, Paul
Year of birth missing (living people)
Living people
20th-century New Zealand lawyers
Victoria University of Wellington alumni
New Zealand legal scholars
Fellows of Sidney Sussex College, Cambridge
People from Gisborne, New Zealand