Professor Shaunnagh Dorsett’s research focuses on questions of authority, reaching across legal history, jurisprudence and contemporary indigenous rights to land. Her work is interdisciplinary, drawing on legal doctrine, legal history and history of political thought in order to shed light on some of the key concepts of law: authority; jurisdiction; and sovereignty. Her work has been influential in a number of areas of legal scholarship, including jurisprudence, international law and legal history. Professor Dorsett has also made a significant contribution to furthering the discipline of legal history, through the organization of key international conferences, membership of editorial committees and editorial boards, and administrative positions with academic societies. She is also the editor of a number of influential legal history collections, including Law and Politics in British Colonial Thought: Transpositions of Empire (Palgrave McMillen) (edited with Ian Hunter) and Legal Histories of the British Empire: Laws, Engagements and Legacies (Routledge) (edited with John McLaren)
Professor Dorsett is the Director of the Faculty of Law's Area of Research Exellence in Law and History.
- Member, Editorial Committee, The Journal of Legal History
- Member, International Advisory Board, The Journal of Comparative Legal History
- Business Manager and Committee Member, law&history
- Immediate Past President, Australian and New Zealand Law and History Society
Can supervise: YES
Legal history generally and particularly
- indigenous / Crown engagement
- the history of civil procedure and of nineteenth century equity reform
Comparative Native Title
- Real Property (LLB and JD)
Dorsett, SG 2017, Juridical Encounters: Maori and the Colonial Courts 1840-1852, Auckland University Press, Auckland.
From 1840 to 1852, the Crown Colony period, the British attempted to impose their own law on New Zealand. In theory Māori, as subjects of the Queen, were to be ruled by British law. But in fact, outside the small, isolated, British settlements, most Māori and many settlers lived according to tikanga. How then were Māori to be brought under British law?
Influenced by the idea of exceptional laws that was circulating in the Empire, the colonial authorities set out to craft new regimes and new courts through which Māori would be encouraged to forsake tikanga and to take up the laws of the settlers. Shaunnagh Dorsett examines the shape that exceptional laws took in New Zealand, the ways they influenced institutional design and the engagement of Māori with those new institutions, particularly through the lowest courts in the land. It is in the everyday micro-encounters of Māori and the new British institutions that the beginnings of the displacement of tikanga and the imposition of British law can be seen.
Juridical Encounters presents one of the first detailed studies of the interactions of an indigenous people in an Anglo-settler colony with the new British courts. By recovering Māori juridical encounters at a formative moment of New Zealand law and life, Dorsett reveals much about our law and our history.
Gray, J, Foster, N, Dorsett, SG & Roberts, H 2017, Property Law in New South Wales, 4, LexisNexis Australia, Sydney.
© 2012 Shaunnagh Dorsett and Shaun McVeigh. This book takes its cue from the observation that jurisdiction - as the speech of law - articulates or proclaims law. Without jurisdiction the law would be speechless, without authority and authorisation. So too would be critics who approach the law or want to live lawfully. As a field of legal knowledge and legal practice, jurisdiction is concerned with the modes of authority and the manner of the authorisation of law. It encompasses the broadest questions of the authority and the founding of legal order as well as the minutest detail of the ordering of the business of the administration and adjudication of justice. It gives us both the point of articulation of law and the technological means of the expression of law. It gives us too, the understanding of the limits of the authority of law, as well as the resources for engaging with the plurality of laws, and the means of engaging in lawful behaviour. A critical approach to law through the forms of authority and action in law provides a means of engaging with the quality of relations created and maintained through law and a means of taking responsibility for the practices of jurisdiction (and what is done in the name of the law).This book provides a critical, and historically grounded, elaboration of the key themes of jurisdiction. It does so by offering students and scholars of law a form of critical engagement with the technologies, devices and forms of jurisdictional ordering. It shows how the common has authorised legal relations and bound persons, places, and events to the body of law. It offers a number of resources and engagements of jurisdiction on the basis that a jurisprudence of jurisdiction, if it is anything, engages forms of human relation.
This book takes its cue from the observation that jurisdiction - as the speech of law - articulates or proclaims law. Without jurisdiction the law would be speechless, without authority and authorisation. So too would be critics who approach the law or want to live lawfully. As a field of legal knowledge and legal practice, jurisdiction is concerned with the modes of authority and the manner of the authorisation of law. It encompasses the broadest questions of the authority and the founding of legal order as well as the minutest detail of the ordering of the business of the administration and adjudication of justice. It gives us both the point of articulation of law and the technological means of the expression of law. It gives us too, the understanding of the limits of the authority of law, as well as the resources for engaging with the plurality of laws, and the means of engaging in lawful behaviour. A critical approach to law through the forms of authority and action in law provides a means of engaging with the quality of relations created and maintained through law and a means of taking responsibility for the practices of jurisdiction (and what is done in the name of the law).
Gray, J, Edgeworth, B, Foster, N & Dorsett, SG 2012, Property Law in New South Wales, 3, LexisNexis Butterworths, Australia.
Dorsett, S 2019, 'Procedural reform in the nineteenth century British Empire: the failure of Barron Field in Gibraltar', Comparative Legal History, vol. 7, no. 2, pp. 130-156.View/Download from: Publisher's site
George Lafferty & Shaunnagh Dorsett 2018, 'Surviving on the Brink: New Zealand Workers, Unions and Employment Relations, 1991–2008', Labour History, vol. 115, pp. 67-85.View/Download from: UTS OPUS or Publisher's site
In 1856 New Zealand enacted a new regime for civil procedure. In so doing,
it became the first colony in the Empire to create a comprehensive code of
civil procedure. Innovative and wide-ranging, its authors drew on multiple
sites from around the Empire (and beyond), instituting reforms not yet
possible in England, and establishing the foundations for New Zealand’s
modern system of civil procedure. This article traces the origins of, and
inspirations for, the 1856 Code. It focuses on two key aspects of reform:
pleading and “fusion”. The article seeks to draw attention to the neglected
history of procedure in general and to the place of New Zealand in the story
of 19th century procedural reform in England and its Empire in particular.
This article considers the little-known 1838 proposal by Robert Torrens for the establishment of a native government in New Zealand. In so doing, it joins recent literature which seeks to move away from doctrinal or juridical legal history through an exploration of the ways in which legal concepts were used in the first part of the nineteenth century by colonial actors as tools, deployed for political advantage, rather than in strict reliance on them as a particular legal form. In so doing, however, this article also contends that although legal forms were often malleable and could be, and were, deployed in this way, those who relied on them were also bound by Imperial constitutional principles which, while often broad and ambiguous, nevertheless acted as limits on the deployment of these concepts
This essay examines a number of jurisdictional engagements that point to difficulties in joining or separating relations between public authority, jurisprudences of jurisdiction and the writing of jurisprudence.
Dorsett, SG 2014, 'How Do Things Get Started? Legal Transplants and Domestication: An Example from Colonial New Zealand', New Zealand Journal of Public and International Law, vol. 12, pp. 103-122.
Dorsett, SG 2014, 'The Court of Claims and the resolution of informal land claims in New South Wales 1833-1835', Property Law Review, vol. 4, no. 1, pp. 5-21.
This article discusses a little known 19th century legal institution: The New South Wales Court of Claims. Established in 1833, its remit was to determine who had the better or best title to land in situations where informal land practices had led to uncertain or conflicting claims to land. Despite its important position within the framework of early land law, its operation has been overshadowed by later land institutions, such as the Torrens system. An examination of this court, however, has two benefits. Most obviously, it can shed light on how the mass of informal and conflicting titles was resolved in New South Wales. More broadly, an examination of the court's practice reminds us that the connections between colonial institutions cannot be determined from their enacting statutes, but rather must be disinterred from their day to day workings.
Dorsett, SG 2014, 'The Precedent is India: Crime, Legal Order and Governor Hobson’s 1840 Proposal for the Modification of Criminal Law as applied to Māori', law&history, vol. 1, no. 1, pp. 29-55.View/Download from: UTS OPUS
This article considers the 1840 draft Act by Captain (later Governor)Hobson for the modification of criminal law as applied to Māori. Never enacted, Hobson’s plan was the first in a series of Acts which used exceptional criminal laws as a mechanism for imposing legal order. More broadly, an examination of Hobson’s draft Act also contributes to a growing literature which considers the key transitional period of the second and third decades of the nineteenth century, a period which witnessed the movement from a more pluralised empire to one in which a more recognisably ‘modern’ form of territorial sovereignty was emerging.
This article considers the significant modifications made to English Chancery procedure by the first rules of court of the Supreme Court of New Zealand (1843/44). In the first part of the nineteenth century, across the empire colonial judges used their power to draft their own rules to modify English practice and procedure, often implementing changes ahead of those of the English reform movement. The first rules of court in New Zealand were particularly innovative: they introduced new, simplified and uniform rules for actions and suits, as well as achieving a level of administrative `fusion well before the reforms either of the New York Field Code 1849 or the English Judicature Act 1873.
Dorsett, SG & McVeigh, S 2012, 'Conduct of Laws: Native Title, Responsibility, and Some Limits of Jurisdictional Thinking', Melbourne University Law Review, vol. 36, no. 2, pp. 470-493.View/Download from: UTS OPUS
[It is now twenty years since the High Court of Australia designated `native title as the site of engagement of Australian common law and jurisprudence with Indigenous law and jurisprudence in Mabo v Queensland [No 2]. Common law jurisprudence, however, continues to struggle to create the appropriate form and conduct of the relations between itself and Indigenous laws and jurisprudence. It struggles, in short, to create an appropriate meeting place of laws. In light of recent attempts to amend the Native Title Act 1993 (Cth), it is timely, then, to return to the irst question that is addressed in the meeting of laws in Australia, that of the authorisation of laws and the quality and conduct of the meeting place. Here the meeting of Australian common law and Indigenous law in Australia is tracked in terms of a brief history of common law jurisdictional practice, the jurisprudence of the conduct of lawful relations in and through s 223 of the Native Title Act, and oicial forms of responsibility for lawful relations
This article looks at the first rules of the Supreme Courts of New South Wales and New Zealand. In both colonies the first Chief Justice put in place simplified rules, appropriate, as they saw it, for the needs of a young colony in which there was a single superior court. This paper places these rules within the context of Empire and then examines two facets of them: initiating civil litigation and the relationship between law and equity in a single superior court. For colonial judges, the ability to draft their own rules was one of the most significant ways in which they could adapt English law to the circumstances of their own colonies and influence the development of the shape, form and development of their respective legal systems.Most importantly, many of their reforms were undertaken ahead of those in England and could have provided both inspiration for, and evidence of success of, simplifications that could easily be achieved.
Dorsett, SG 2010, 'Case Note: R v E Hipu', Victoria University of Wellington Law Review, vol. 41, no. 1, pp. 89-96.
Dorsett, SG 2010, 'Making Up the Issue: The Judge's Role in Formulating Actions in the Crown Colony Period- Pharazyn v Smith (1844)', Victoria University of Wellington Law Review, vol. 41, no. 3, pp. 427-452.View/Download from: UTS OPUS
This article considers one althe key procedural innovations of the first Supreme Court rules - the making up of the issue - through the lens of the Supreme Court decision in Pharazyn v Smith (J 844). Making up the issue referred to the process whereby pleadings were drafted in conference with the judge hearing the case. This contrasted with the English system of the time 0/ a series of written exchanges between parties designed to identify the disputed issues of fact and law, and in which the role afthe judge was essentially a passive one. Through Pharazyn v Smith we can see one of the ways in which judges sought to modify English laws to the circumstances of the colony, as well as the judges' role in shaping litigation, and hence law, in the infant colony.
Dorsett, SG & Lafferty, GD 2010, 'Good Faith and the Fair Work Act: Its Potential, in Light of the New Zealand Experience', The Economic and Labour Relations Review, vol. 21, no. 1, pp. 53-68.View/Download from: UTS OPUS
This article addresses the potential of the Fair Work Acts good faith bargaining provision to enhance good faith bargaining and employment relationships, using New Zealand's good faith provisions under the Employment Relations Act 2000 as a comparative frame of reference. It explores the limitations of the Fair Work Acts compliance-based approach to good faith, which consists mainly of the parties presenting a legally defensible appearance of not acting in bad faith. In contrast, the New Zealand legislation aims to suffuse good faith with considerable content and definition, enabling parties to the employment relationship to extend good faith well beyond bargaining. In contrast to the Employment Relations Act, the formalistic, procedural approach promoted by the Fair Work Act is unlikely to encourage a significant cultural change towards meaningful good faith principles and practices.
Dorsett, SG 2009, 'Sworn on the Dirt of Graves: Sovereignty, Jurisdiction and the Judicial Abrogation of 'Barbarous' Customs in New Zealand in the 1840s', The Journal of Legal History, vol. 30, no. 2, pp. 175-197.View/Download from: UTS OPUS or Publisher's site
This paper examines the judicial construction of jurisdiction over Maori in the 1840s in New Zealand. Using new data, including case material and extra-judicial commentary, it examines the first decisions by the New Zealand Supreme Court on crime between Maori (crime 'inter se'). In so doing, it briefly places New Zealand in a broader context of settler colonies, and considers how colonial judges (such as Chapman J of the Supreme Court of New Zealand) fashioned the common law to fit the contingency of local circumstance, thereby playing their part in constituting local sovereignty. Finally, the article also considers the reaction of settlers to Maori crime and these decisions.
Dorsett, SG 2008, 'Indigenous Peoples in International Law', Immigrants and Minorities, pp. 315-318.
Dorsett, SG 2008, 'Non-Wage Clauses in Collective Agreements', IRC Newsletter.
Dorsett, SG & McVeigh, S 2008, 'The Persona of the Jurist in Salmond's Jurisprudence: On the Exposition of "What Law is..."', Victoria University of Wellington Law Review, vol. 38, no. 4, pp. 771-796.View/Download from: UTS OPUS
Dorsett, SG 2007, 'Foreword Special Edition of the VUWLR on Salmond', VUWLR.
This comment considers a recent decision of the Supreme Court of New Zealand on the fiduciary duties owed by prospective joint venturers. As one of the first cases concerning equity heard by the new court, it provides an interesting insight into the possible approach of the court to this area of law. The comment first looks to the imposition of liability and examines the different approaches taken by the court, focusing on the problems of imposing liability in early pre-contractual joint venture cases. The comment then considers the impact these problems may have had on remedy, highlighting the remedial flexibility which characterises equity jurisdiction in New Zealand. In September 2006 the Supreme Court of New Zealand handed down its judgment in Chirnside v Fay, a case concerning the nature of the obligations between joint venturers and attendant remedies for breach of fiduciary duty.1 Those interested in equity matters may remember that the 2004 Court of Appeal decision in Chirnside attracted some attention, most notably for the courts somewhat controversial application of a loss of chance analysis to the calculation of quantum.2 The Supreme Court decision, therefore, was eagerly awaited to see whether that court would uphold such an analysis or substitute a more orthodox approach. Chirnside v Fay is one of the first cases determined by the new Supreme Court which falls squarely within the area of equity.3 Chirnside v Fay was, therefore, a chance to gauge that courts likely approach to equity jurisdiction and no better case could be found than one whose subject matter lies at the heart of equity: the fiduciary obligation.
Dorsett, SG 2006, 'Aboriginal Rights in the Offshore: Maori Customary Rights under the Foreshore and Seabed Act 2004 (NZ)', Griffith Law Review, vol. 15, no. 1, pp. 74-110.View/Download from: UTS OPUS
This article considers the new Foreshore and Seabed Act 2004 (NZ). This Act was passed in response to the Court of Appeal decision in Ngati Apa in 2003, which determined that Maori customary rights had not been extinguished in the foreshore. The Act constitutes one of the more significant international developments in Aboriginal rights in recent years. This article will situate the main aspects of the Act within Commonwealth native title jurisprudence. In particular, it contrasts the approach of the New Zealand courts, and the subsequent legislation, with that of the High Court of Australia, and to a lesser extent the Supreme Court of Canada, in recent years. The article concludes that the New Zealand Act constitutes a particularly ungenerous approach to Aboriginal rights: one that imposes significant hurdles on claimants, even in comparison to Australian native title law.
Dorsett, SG & Godden, L 2005, 'Interpreting Customary Rights Orders under the Foreshore and Seabed Act: The New Jurisdiction of the Maori Land Court', Victoria University of Wellington Law Review, vol. 36, no. 2, pp. 229-256.View/Download from: UTS OPUS
Dorsett, SG & McVeigh, S 2005, 'An Essay on Jurisdiction, Jurisprudence and Authority: The High Court of Australia in Yorta Yorta(2001)', Northern Ireland Legal Quarterly, vol. 56, no. 1, pp. 1-20.View/Download from: UTS OPUS
Like the common law legal ordering of England and Wales, the ordering of British colonisation has, in many ways, been an affair of jurisdiction. It is through jurisdiction that the authority of the common and imperial laws have been asserted, and it is through questions of jurisdiction that the legal settlement of the colonies has been effected. Post-colonising and postcolonial settlements have frequently turned to constitutional orders to reconstitute normative relations between the conceptual register of nation (state)-sovereignty-territory and that of land and people. However, questions of jurisdiction remain. This is nowhere more so than
Dorsett, SG 2002, ''Since Time Immemorial': A Story of Common Law Jurisdiction, Native Title and the Case of Tanistry', Melbourne University Law Review, vol. 26, no. 1, pp. 32-59.
Dorsett, SG 2002, 'The Case of Tanistry', Australian Indigenous Law Reporter.
Dorsett, SG & McVeigh, S 2002, 'Just So: "The Law Which Governs Australia is Australian Law"', Law and Critique, vol. 13, no. 1, pp. 289-309.
Dorsett, SG 2000, 'In the Box: Native Title as Cultural Regulation', Media and Culture Review, vol. 3, p. 3.
Dorsett, SG & Godden, L 2000, 'The Interaction of Planning Law and Native Title', Environment and Planning Law Journal, vol. 17, no. 5, pp. 374-382.
Dorsett, SG 1999, 'Africa: Making Amends for Past Injustice: Restitution of Past Injustice in South Africa', ILB, vol. 4, no. 23, p. 10.
Dorsett, SG 1999, 'Headnote and extracts, Presidentâs Five Year Report on the Native Title Act', Australian Indigenous Law Reporter, vol. 4, no. 3.
Dorsett, SG 1999, 'Restitution of Land Rights in South Africa', Indigenous Law Bulletin, vol. 4, no. 23, pp. 9-11.
Dorsett, SG 1999, 'Restitution of Urban Land in South Africa: the Story of District Six', The University of New South Wales Law Journal, vol. 22, no. 1, pp. 180-204.
Dorsett, SG & Godden, L 1999, 'Tenure and Statute: Re-Conceiving the Basis of Land Holding in Australia', Australian Journal of Legal History, vol. 5, no. 1, pp. 29-40.
Dorsett, SG 1998, 'Headnote and extracts, Delgamuukw v. The Queen in Right of Canada', Australian Indigenous Law Reporter, vol. 3, no. 1, p. 35.
Dorsett, SG 1997, ''Clear and Plain Intention': Extinguishment of Native Title in Australia and Canada Post-Wik', Griffith Law Review, vol. 6, pp. 96-121.
Dorsett, SG 1996, 'Apsassin v. The Queen in Right of Canada: Re-examining the Source of the Crown's Fiduciary Obligations to Indigenous Peoples', Aboriginal Law Bulletin, vol. 3, no. 79, p. 7.
Dorsett, SG 1996, 'Comparing Apples and Oranges: The Fiduciary Principle in Australia and Canada after Breen v. Williams', Bond Law Review, vol. 8, no. 2, pp. 158-181.
Dorsett, SG 1996, 'Towards a Reconsideration of the Doctrines of Tenure and Estates', Australian Property L.J., vol. 30.
Dorsett, SG 1995, 'Civilisation and Cultivation: Colonial Policy and Indigenous Peoples in Canada and Australia', Griffith Law Review, vol. 4, no. 2, pp. 214-238.
Dorsett, S 2020, 'Spanning Two Worlds: Protection, Assimilation, and the Role of Edward Meurant, Government Interpreter, New Zealand, 1840-1851' in Furphy, S & Nettelbeck, A (eds), Aboriginal Protection and Its Intermediaries in Britain's Antipodean Colonies, Routledge, New York, pp. 97-114.View/Download from: UTS OPUS
Dorsett, SG 2018, 'Traditions: Tracing Legal History, Aboriginal/Indigenous Law (Australia/New Zealand)' in Dubber, MD & Tomlins, C (eds), The Oxford Handbook of Legal History, Oxford University Press, UK.View/Download from: UTS OPUS or Publisher's site
This chapter examines legal encounters and legal relations between Indigenous peoples in both Australia and New Zealand and the British Empire. It looks at court decisions as a source of historical material in order to suggest two contact points between jurisdictions through which to think about indigenous laws and settler laws. It focuses on only two instances of contact: the colonial and the present. In many ways this choice reproduces ongoing gaps in tracing and thinking about legal encounters with Aboriginal law in Australia and, to a lesser extent, in New Zealand. Scholarship on legal encounter has tended to be centred on the colonial period to the detriment of the later nineteenth century and much of the twentieth century. The chapter looks at the ways in which colonial and modern law engaged/s with aboriginal law from the perspective of the colonizer, not the colonized.
Dorsett, SG 2014, 'Travelling Laws: Burton and the Draft Act for the Protection and Amelioration of the Aborigines 1838 (NSW)' in Dorsett, S & McLaren, J (eds), Legal Histories of the British Empire: Laws, Engagements and Legacies, Routledge, London, pp. 171-186.View/Download from: UTS OPUS
Dorsett, SG & McLaren, J 2014, 'Laws, Engagements and Legacies: The Legal Histories of the British Empire - an introduction' in Dorsett, S & McLaren, J (eds), Legal Histories of the British Empire: Laws, Engagements and Legacies, Routledge, London, pp. 1-12.
Dorsett, SG & McVeigh, S 2013, 'Section 223 and the shape of native title: the limits of jurisdictional thinking' in Rowse, T & Ford, L (eds), Between Indigenous and Settler Governance, Routledge, Oxon, pp. 162-173.View/Download from: UTS OPUS
Dorsett, SG 2012, ''Destitute of the Knowledge of God': Maori Testimony before the New Zealand Courts in the Early Crown Colony Period' in Diane Kirkby (ed), Past Law, Present Histories, The Australian National University, Canberra, pp. 39-57.View/Download from: UTS OPUS
was to allow colonial legislatures to pass acts or ordinances to allow their indigenous inhabitants to give unsworn testimony before the courts. Unsworn testimony was testimony given by those who were not able to take the oath. At common law the rule was that evidence could only be given on oath, rendering those devoid of religious belief incompetent to testify. In British colonies, therefore, this rule resulted in most of the indigenous inhabitants being unable to give evidence before English courts. This was particularly problematic in the Australian colonies. The imperial Act of 1843 was the outcome of various ine"ectual attempts to allow for such evidence by way of local act or ordinance, particularly in New South Wales and, more latterly, Western Australia. While some attention has been paid to the politics and processes of law reform concerning unsworn testimony in empire, and the ways in which such reforms formed part of broader disputes about the shape of colonial governments,2 these discussions have almost entirely revolved around the Australian colonies.3 New Zealand has received comparatively little attention.
Dorsett, SG 2011, 'De-Vesting the Foreshore: Crown Ownership, Maori Rights and the Marine and Coastal Area (Takutai Moana) Act 2011' in Carruthers, P, Mascher, S & Skead, N (eds), Property and Sustainability Selected Essays, Thomson Reuters (Prous Science), Sydney, pp. 55-68.View/Download from: UTS OPUS
Dorsett, SG 2010, 'Sovereignty as Governance in the Early New Zealand Crown Colony Period' in Dorsett, S & Hunter, I (eds), Law and Politics in British Colonial Thought: Transpositions of Empire, Palgrave Macmillan, New York, USA, pp. 209-228.View/Download from: UTS OPUS
This chapfer discusses the movement of laws and the transmission of ideas across Empire,' In parricuiac, it rracesseveral ways in which sovereignty was understood in certain British intellectual contexts during [he key period of the first half of the nineteenth ceorury, and the various constructs of sovereignty that were employed in response co specific circumstances of colonial governance. The topic around which chis consideration of sovereignty is organized is char of the problem of the ordering of empire and of the management of colonial relations, both between merropole and colony, and with respect to the internal legal order of one colony-New Zealand
Dorsett, SG 2010, 'The Act that almost was: The Fijian Qoliqoli Bill 2006' in Godden, L & Tehan, M (eds), Sustainable Futures: Comparative Perspectives on Communal Lands and Individual Ownership, Routledge, London, UK, pp. 290-306.View/Download from: UTS OPUS
Dorsett, SG 2007, 'An Australian Comparison on Native Title to the Foreshore and Seabed' in Charters, C & Erueti, A (eds), Maori Property Rights and the Foreshore and Seabed, Victoria University Press, Wellington, New Zealand, pp. 59-82.View/Download from: UTS OPUS
In November 2004, the New Zealand Parliament passed the Foreshore and Seabed Act (FSA).1 In so doing. it passed legislation which goes further towards denying Maori the opportunity to establish aboriginal title than comparative legislation which affects indigenous land rights in any other common law country. In essence the FSA removes the right of Maori to apply to Te Kooti Whenua Maori (the Maori Land Court) for territorial customary claims. It extinguishes aboriginal territorial claims to the foreshore and seabed and replaces such claims with a right to argue before the High Court that aboriginal title would have existed but for the legislation. However, there is no accompanying guarantee of compensation for this extinguishment. Finally. it allows for an application for recognition of a non-territorial customary right. known as a customary rights order, to be made to either the Maori Land Court or the High Court. Again, this statutory provision replaces common law jurisdiction.
Picture two images, both of a native title claim area. The first is a map of the claim area, demarcated by latitude and longitude. The areas that cannot be claimed are marked with hatching. There are Crown reservation numbers, and a scale in kilometres - in fact, all the things we expect in a tenure map. I The other image is a painting on canvas, in a form that westerners have labelled 'dot painting'. Yet both address similar concerns, albeit expressed through different cultural lenses: in Western legal terms, jurisdiction, territory and ownership; for the Pila Nguru - the creators of the painting - the Tjukurrpa.
Questions of jurisdiction have been central to Western legal traditions, yet finding a place within jurisprudence and the philosophy of law to pose such questions has not been obvious. By contrast, the practice of the law is preoccupied with questions of jurisdiction and the arrangements of the authority to judge in matters of law. Despite this, the work of practitioners lacks anything but the 'thinnest' of descriptive accounts of what it means to engage with questions of jurisdiction. It is as if legal thought cannot, or can no longer, articulate the terms of its own existence. To introduce Jurisprudence of Jurisdiction, this chapter returns to some of the central topics of jurisdiction in order to investigate the modes or manner of coming into law and of being with law.
Dorsett, SG 1998, 'Land Law and Dispossession: Indigenous Rights to Land in Australia' in Bright, S & Dewar, J (eds), Land Law Themes and Perspectives, Oxford University Press, Oxford, pp. 279-301.
Dorsett, S 2018, 'Displacing Tikanga: ‘Micro-encounters’ in the Courts of the Coloniser', ANZLHS Annual Conference 2018, Wollongong.
Dorsett, S 2018, 'Extra-Territoriality in Empire: The Foreign Office, the Colonial Office and the Foreign Jurisdiction Act 1843', Legal Histories of Empire: Perspectives from the Colonized, University of West Indies, Cave Hill, Barbados.
Dorsett, SG 2018, 'Challenge and Change in the Crown Colony Period', Challenge and Change: The Continuing Evolution of the Judiciary in New Zealand, the Annual Conference of the New Zealand Institute for Judicial Studies, Wellington, New Zealand.
Dorsett, S & Pearce, CM 2017, 'Be Prepared! The Value of Tutorial Preparation Exercises to Legal Education', Research in Legal Education Conference, University of New South Wales.
Dorsett, SG 2017, 'A Particular Kind of Imperial Subject: Edward Meurant, Interpreters and Protective Governance in the New Zealand Crown Colony Period', Protective Governance and its Intermediaries, Canberra.
Dorsett, SG 2017, 'Challenge and Change in the Crown Colony Period', Change and Challenge: The Continuing Evolution of the New Zealand Judiciary., Annual Conference of the New Zealand Institute for Judicial Studies, Wellington, New Zealand.
Dorsett, SG 2017, 'Excluding the Regular Courts: Martial Law, Imperial Control,and Māori Rebels, 1846-7', Canada's Legal Past: Future Directions in Canadian Legal History, Calgary.
Dorsett, SG 2016, 'Protectors in the Court of the Colonised: Amelioration, Protection and Assimilation in Colonial New Zealand', American Society for Legal History Annual Meeting, Toronto.
Dorsett, SG 2013, '"Peculiar Courts: Maori and the Resident Magistrates Court 1846-1852"', ANZLHS Annual Conference, Dunedin.
Dorsett, SG 2103, 'Belonging (to law) on the Edge of ..... Empire"', On the Edge, University of British Columbai.
Dorsett, SG 2013, 'Maori before the Resident Magistrates' Court 1846-1852', American Society for Legal History, Miami, Florida.
Dorsett, SG & McVeigh, S 2013, 'Public Authority Beyond the State: Jurisdiction and Forms of Public Life', Public Authority in the Era of Globalisation, Whitlam Institute, University of Western Sydney.
Dorsett, SG 2012, 'Networks, Trajectories and Comparative Legal History: Burton's Draft 1838 Act for the Amelioration of the Aboriginal Natives', Law, Spaces, Cultures and Empire: Engagements and Legacies, Singapore.
Dorsett, SG 2012, 'The Post-Colonial Turn: Networks of Empire and the 1838 Draft Act for the Amelioration of the Aboriginal Natives (NSW)', Griffith Legal History Seminar Series, Brisbane.
Dorsett, SG 2011, 'Adapting Law to the Circumstances of the Colony: The First Supreme Court Rules of New South Wales and New Zealand', The Twentieth British Legal History Conference, Cambridge.
Dorsett, SG 2011, 'Adapting Law to the Circumstances of the Colony: The First Supreme Court Rules of New South Wales and New Zealand', Forbes Lecture 2011 - the Annual Lecture of the Francis Forbes Society for Australian Legal History, Sydney.
Dorsett, SG 2011, 'Why Archive? The New Zealand Lost Cases Project', Rare Books Lecture, Melbourne.
Dorsett, SG & McVeigh, S 2011, 'Managing the Meeting of Laws: Native Title, Plurality and the Limits of Jurisdictional Thinking', Between Indigenous and Settler Governance, Sydney, Australia.
Dorsett, SG 2010, 'De-vesting the Foreshore: Crown Ownership, Maori Rights and the Proposed Foreshore and Seabed Act 2010', Australlian Property Law Teachers Conference, Perth.
Dorsett, SG 2010, 'Making Up the Issue: The Judges Role in Formulating Litigation in the Crown Colony Period', Victoria University of Wellington.
Dorsett, SG 2010, 'The Precedent is India: Sovereignty, Jurisdiction and Hobson's 1840 Draft Legislation for the Modification of Criminal Laws in their Application to Maori', Owning the Past: 29th Annual ANZLHS Conference, Melbourne.
Dorsett, SG 2009, ''Defects of Religious Principle' and Unsworn Maori Testimony in the New Zealand Courts 1840-1850', 28th Annual Australian and New Zealand Law and History Conference, Victoria University of Wellington.
Dorsett, SG 2009, 'Perspectives on Sovereignty as Colonial Administration in the Early New Zealand Crown Colony Period', Transpositions of Empire, Prato, Italy.
Buck, A, Dorsett, SG & Salter, B 2008, '' A one -man Selden society',or,recovering colonial case law: The Kercher Reports and their influence', The 27th Australian and New Zealand Law and History Society Conference, Adelaide.
Dorsett, SG 2008, ''A one-man seldom society', or, recovering colonial case law: The Kercher Reports and their influence', The 27th Australian and New Zealand Law and History Society Conference Adelaide, Adelaide.
Dorsett, SG 2008, 'To Barter Sovereignty for a Blanket: Judicial Perspectives on Sovereignty and the Treaty of Waitangi in the Early New Zealand Crown Colony Period', Melbourne Law School.
Dorsett, SG 2007, '"New Quilts from Old Rags": The Status of Indigenous Peoples in Colonial New South Wales', 18th British Legal History Association Conference, Oxford, Oxford.
Dorsett, SG 2006, 'National Report on Occupational Safety and Health for New Zealand, Conference Proceedings, International Society for Social Security and Labour Law', Paris.
Dorsett, SG 2010, 'National Report on Occupational Safety and Health for New Zealand, International Society for Social Security and Labour Law', (ISSSLL) XVII World Congress, Paris.
Dorsett, SG 2006, 'The Foreshore and Seabed Act', Annual Conference, Dunedin.
Dorsett, SG 2010, 'The Habits and Logics in whose Shadow we Live: Common Law Jurisdiction and Native Title', Australian Society of Legal Philosopy, Auckland.
Dorsett, SG & McVeigh, S 2010, 'Inaugurations of Legal Life in Salmonds Jurisprudence: On the exposition of 'What law is..."', Victoria University of Wellington.
Dorsett, SG 2005, 'Interpreting CROs: Comparative Jurisprudence from Australia and Canada', Maori Land Court, Wellington.
Dorsett, SG 2005, 'Making Strategic Choices: Territorial and Non-territorial Customary Rights Orders under the Foreshore and Seabed Act 2005 (NZ)', Australian Property Lawyer's Conference, University of the South Pacific, Vanuatu.
Dorsett, SG 2004, 'An Australian Comparison on Native Title to the Foreshore and Seabed', Wellington.
Dorsett, SG 2003, 'Legal Obligations of Managers', Brisbane.
Dorsett, SG 2002, 'Legal Obligations of Managers', Brisbane.
Dorsett, SG 2002, 'Since Time Immemorial: Native Title and the Common Law', Griffith University, Brisbane.
Dorsett, SG 2001, 'Creating a Mnemonics of Land and Place: Reconciling the landscapes of law', European Australian Studies Association, Lecce, Italy.
Dorsett, SG 2002, 'Since Time Immemorial: A Story of Common Law Jurisdiction, Native Title and the Case of Tanistry', Brehon Law Conference, Dublin.
Dorsett, SG 2000, 'In the Box: Native Title as Cultural Regulation', Annual Law and Society Conference, Brisbane.
Dorsett, SG 2000, 'Native Title and the Authentic Aborigine', Helsinki.
Dorsett, SG 1999, 'Native Title: A Fundamentally Flawed Doctrine?', International Symposium of Society and Resource Management, Queensland.
Dorsett, SG 1999, 'Tenure and Statute: Reconceiving the Basis of Land Holding in Australia', Annual Conference of the Law and History Society, Newcastle.
Dorsett, SG 1999, 'The Establishment and Extinguishment of Native Title in a Negotiated Framework', Law and Society Conference, Chicago.
Dorsett, SG 1998, 'Comparative Native Title: Learning from other Jurisdictions', Native Title: Facts, Fallacies and the Future,, UNSW Symposium on Native Title:facts, fallacies and the future, UNSW, Sydney.
Dorsett, SG 1998, 'Native Title Law in Australia and its Impact on Property Regimes', Department of Land Affairs, Cape Town, South Africa.
Dorsett, SG 1997, 'An Update on Compliance with the United Nations Convention on the Rights of the Child', ALTA.
Dorsett, SG 1996, 'An Update on Indigenous Rights in Australia: The Native Title Act', University of Calgary, Canada.
Dorsett, SG 1996, 'Cultivation, Civilisation and Indigenous Peoples', Law and History Conference, Brisbane.
Dorsett, SG 1995, 'Towards a Reconsideration of the Doctrines of Tenure and Estates', Bond University.
Godden, L & Dorsett, SG 2000, The Contractual Status of Indigenous Land Use Agreements, Land, Rights, Laws: Issues of Native Title, pp. 1-12, Canberra.
Dorsett, SG & Godden, L AIATSIS Press 1998, A Guide to Overseas Precedents of Relevance to Native Title, pp. 1-283, Canberra.