Thursday, March 19, 2015

Boast on Property and Indigenous Peoples in New Zealand, the US, and Latin America

Richard Boast (credit)
Richard Boast, Victoria University of Wellington Faculty of Law, a leading legal historian of land law and Maoridom in New Zealand, whose scholarship and complementary legal work are well described on VUW's website, has posted four items from his backlist.

Property Rights and Public Law Traditions in New Zealand, New Zealand Journal of Public and International Law 11 (2013): 161-82 (Special Issue: 21st Birthday of the New Zealand Bill of Rights Act):
This article is about the public law aspect of New Zealand's land law system. It seeks to discover the broad characteristics of New Zealand land law from the standpoint of public policy and the country's distinctive legal history. The article suggests that while components of the New Zealand system have been borrowed from elsewhere, such as the Torrens system (devised in South Australia) or the nationalisation of petroleum in 1937 (based on similar legislation in the United Kingdom), the particular combination of these components that mark the legal framework in place today is unique. This combination also includes some features not found elsewhere, including the concept of Maori freehold land and the creation of a new vesting regime for the foreshore and seabed in 2011. It is also argued that any proposal to reform or remodel New Zealand's system of property law (including through reforms to the New Zealand Bill of Rights Act 1990) should take the existing framework into account.
Bringing the New Philology to Pacific Legal History, Victoria University of Wellington Law Review 40 (2011): 399-416:
This article is a study of the main features of the so-called new philology, a school of historians based mainly in the United States who have pioneered a novel approach to the history of indigenous societies under colonial rule by focusing on day-to-day "mundane" texts, typically legal documents or documents preserved in legal records,written in indigenous languages. It is suggested that New Zealand provides a unique opportunity to experiment with the approaches of the new philology outside Latin America as it meets the basic requirement of having preserved a significant amount of written documentation recorded in an indigenous language. What such a study might reveal is unclear, but the overall conclusion is that it should certainly be attempted. One weakness of the new philology, however, is that while it is based strongly on legal documents, it does not engage with law or with legal processes as such.
Contextualising the Decisions of the Native Land Court: The Chatham Islands Investigations of 1870, Victoria University of Wellington Law Review 41 (2010):  623-52:
One of the outcomes of the Lost Cases project at the Faculty of Law at Victoria University will be an edition of nineteenth century judgments of the Native Land Court. These decisions have never been reported before. The anticipated date of publication is mid- to late- 2011, and the volume will report leading decisions of the Native Land Court, Compensation Court, and associated bodies from 1865 to 1894. The date of 1894 has been selected as a cut-off for the reason that the Native Land Court Act 1894 established a new appellate body, the Native Appellate Court – today the Maori Appellate Court – which began issuing appellate judgments immediately. Until this point all appeals had been by means of rehearings and no formal appellate structure existed. Future volumes will report decisions of the Native Land Court and Native Appellate Court down to the present day. This article explores the current state of the historiography relating to the Native Land Court, and by reference to the Chatham Islands Investigation of 1870, suggests that a more complex and nuanced approach to the work of the Court is needed. The full texts of the Chatham Islands judgments of 1870 are printed as an Appendix.
Felix Cohen and the Spanish Moment in Federal Indian Law: A Study in Law, Politics and Historiography, Victoria University of Wellington Law Review 39 (2008): 419-56:
One of the best-known discussions of the historical foundations of native title law is Felix Cohen's famous paper on the Spanish Origins of Federal Indian Law, published originally in 1942 and since then reprinted many times.

This article cites Cohen's paper in its political and historiographical context, paying particular attention to Cohen's role as one of the architects of the Indian Reorganisation Act of 1934, and considering also shifts in American historiography and legal writing relating to the Spanish legacy as exemplified by legal historians such as James Brown Scott and historians such as H E Bolton. This article also considers fully Cohen's analysis of the precise ways in which Spanish law penetrated the legal framework of Federal Indian Law in the United States and concludes that, as a historical discussion, Cohen's work is in need of substantial revision. In particular Cohen's arguments that Spanish law influenced federal Indian law via international law and by means of judicial consideration of old Spanish land claims seem difficult to sustain.

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