Aboriginals and Métis in Rupert's Land

July's Environmental History has a review by Neil S. Forkey of Civilizing the Wilderness: Culture and Nature in Pre-Confederation Canada and Rupert’s Land (U Alberta Press, 2012) by A.A. den Otter. The book apparently treats legal issues in at least one instance, as Forkey writes:

The strength of the collection lies in its highlighting of Aboriginals and the Métis as integral to the manifold changes of the period. Den Otter skillfully demonstrates that far from resisting some of the encroachments brought by contact with the Hudson’s Bay Company, which conducted a trade in furs, or with the burgeoning Canadian state, the Métis were willing (on their own terms) to embrace certain elements of progress. The best illustration of this is his reexamination of the 1849 (Pierre-Guillaume) Sayer Trial, in which four Métis traders were charged with breaching the HBC’s trade monopoly. The men were found guilty but released on the grounds of mercy. The over two hundred Métis encamped outside the court building erupted in cheers, in what den Otter concludes was vindication for those seeking access to more lucrative American markets so as to improve the quality of their lives. Free trade, an example of progress, was what the Métis wanted. 

The history of fishing law

We are happy to re-post a review by George Conk of W. Jeffrey Bolster's The Mortal Sea - Fishing the Atlantic in the Age of Sail (Harvard UP, 2012). (Fishing and the law is an old topic that seems to be a renewable resource--see, for example, Arthur McEvoy's classic The Fisherman's Problem: Ecology and Law in the California Fisheries, 1850-1980, and recent posts here and here.)

George is a Senior Fellow at Fordham Law School's Stein Center for Law & Ethics, who blogs at Otherwise, and fishes the Muscongus Bay, Gulf of Maine. He is currently researching oil spill compensation to fishermen in the Bohai Bay, China. The review:

The Tragedy of the Commons has been the dominant metaphor to depict the decline of the fisheries since Garrett Hardin’s classic 1968 article in Science magazine.  Hardin observes, for example, that “[t]he rational man finds that his share of the cost of the wastes he discharges into the commons is less than the cost of purifying his wastes before releasing them. Since this is true for everyone, we are locked into a system of `fouling our own nest’, so long as we behave only as independent, rational, free-enterprise” actors.  Hardin's metaphor of ineluctable catastrophe invokes moral deficiency to reject the invisible hand as a solution to the problem of scarcity, and a reason to decline to celebrate with abandon the contractarian libertarian vision.  Others like Yale legal historian Robert Ellickson in Order Without Law have observed that `neighbors’ could settle disputes by practices that create order without law - thus establishing law.  But such social groupings were incapable of ruling the seas, or even the rivers that lead to it.

Jewish law and the environment

We recently posted on John Nagle's discussion of Lynn White's influential "The Historical Roots of Our Ecologic Crisis", which blamed Christianity for modern environmental problems, and the critiques that have been leveled against it.

Jonathan Zasloff's recent post at Legal Planet, "A New/Old Jewish Environmental Ethic: Don’t Go About Like a Merchant", examines religion and the environment from a new and surprising angle, the relation of Jewish law's prohibition not to "go about like a merchant" (לא תלך רכיל) to environmental issues. Zasloff writes:

To the extent that the לא תלך רכיל injunction is about merchants, it opens up huge vistas to think about environmental ethics.  It most assuredly is not saying that being a merchant is bad; there are literally hundreds of laws, decisions, and ethical commands on the proper conduct of private business.  But instead, what it suggests is that one should not “walk around” or “go out” as a merchant; in other words, one should not apply the rules of private business to spheres where it does not apply.

It’s not hard to see where this is going.  Interpreting the injunction in this way would yield an approach to environmental policymaking that is cautious and conservative in allowing purely economic considerations to dominate the preference for rules.  It’s not bad to act like a merchant, but you shouldn’t walk around doing it.  There are a host of other ways to think about problems: justice, fairness, tradition, equality (not to mention humanity’s relationship with God).  Jamming everything into economic models or cost-benefit calculations violates the injunction.  Note, by the way, how much better the “merchant” interpretation goes with the immediate context: you don’t go about as a merchant because then you consider everyone as things to be added into a calculation, in other words, you would stand idly by the blood of your neighbor.

Constitution and environment in the graveyard of history

Where do constitutional history and environmental history meet? In cemeteries, it turns out.

(Environmental History)

Al Brophy recently posted "'These great and beautiful republics of the dead': Public Constitutionalism and the Antebellum Cemetery", in which he argues for the importance of cemeteries in American constitutional discourse. (This is not Brophy's first foray into environmental aspects of legal history; see his "Property and Progress: Antebellum Landscape Art and Property Law".)

Readers of Environmental History may remember Aaron Sachs's 2010 article, "American Arcadia: Mount Auburn Cemetery and the Nineteenth-Century Landscape Tradition", in which he explores the "flowering of a landscape tradition in the antebellum period that was characterized by a simultaneous engagement with mortality and with the immediate environmental context of ordinary life, by an ecological ethic based on humility, finitude, and integration". (See also Sachs's recently published Arcadian America: The Death and Life of an Environmental Tradition (Yale UP, 2013).)

Interestingly, both articles highlight Boston's Mount Auburn Cemetery (pictured here). Unfortunately, this seems to be yet another case where the disciplines of environmental history and legal history are talking past each other. Time for a dialogue!

Free mining in Quebec

Thetford Mines, nimonik.ca

The Canadian Legal History Blog recently noted the publication of Ugo Lapointe's "L’héritage du principe de free mining au Québec et au Canada" in the 2010 volume of Recherches amérindiennes au Québec. The English abstract:

This article portrays the origins and evolution of free mining regimes in Québec and in Canada, as well as the consequences of these mining regulations for people, communities, mining companies, and public authorities. The author argues that free mining regimes distort power relations which contribute to social and environmental conflicts. In conclusion, he proposes reviewing mining regulations based on the free mining regime and sketches out possible alternatives.

Digital archives on western water law

The William A. Wise Law Library at Colorado Law has two digital archives that should be useful to those interested in the history of western water law. The Arizona v. California Collection contains, as the site explains,

more than 160 full-text, searchable pleadings, briefs, orders, transcripts, and reports from the historic, 12-year original proceeding in the U.S. Supreme Court filed by the State of Arizona against the State of California, which sought to clarify rights to the use of Colorado River basin water. The case culminated in a June 3, 1963 decision, reported in Arizona v. California, 373 U.S. 546, which was implemented by a March 9, 1964 decree, reported in Arizona v. California, 376 U.S. 340.

This archive should be useful not only to those interested in the monumental case, the results of which continue to affect the American Southwest, but also in legal developments of the years preceding the case, such as the Colorado River Compact of 1922.

Property rights and deforestation

from the article

Zachary Liscow's recently published "Do Property Rights Promote Investment But Cause Deforestation? Quasi-Experimental Evidence from Nicaragua", an economics article, has deep resonance with both the environmental law and environmental history literatures. Many have argued that private property is a solution to environmental problems of the sort Garrett Hardin called "The Tragedy of the Commons". Others have blamed private property for environmental depredations of all sorts. Liscow weighs in with some empirical research, as the abstract explains:

Law and salmon fishing

The latest Environmental History includes a review by Ted Binnema of Lisa Wadewitz's The Nature of Borders: Salmon, Boundaries, and Bandits on the Salish Sea (U of Washington Press, 2012). Calling it an "impressive study", Binnema writes:

The most impressive chapters of this book are those focused on the late nineteenth and early twentieth centuries. With considerable nuance, they explore the many and complex legal and illegal ways that people involved in salmon fishing and canning exploited for their own benefit the different economic, political, and regulatory regimes on either side of the international border. That international dimension to the history lends the history of the Fraser River a fascinating distinctiveness. Although the border often facilitated people’s efforts to further their own interests, it also stymied efforts at salmon conservation. Wadewitz includes race, ethnicity, gender, and class in a study that may yet be most appropriately categorized as a borderlands environmental history. She includes the relatively powerless fishermen, cannery workers, and fish trap watchmen of aboriginal, Asian, and European extraction, the powerful and wealthy cannery owners, fish trap owners, and government officials who sought to control the industry, and the defiant fish bandits (who illegally caught fish in one country and sold in the other) and fish pirates (who stole salmon from fish traps). Those who would regulate and police the fishing and canning industries faced impediments and obstacles so large that they could not hope to accomplish their goals. Among the obstacles was the fact that the victims of illegal activity (poaching, banditry, piracy, and illegal migration across the border) were often also perpetrators, abettors, or beneficiaries. Poachers and fish pirates were perceived among at least some of the public as underdogs and Robin Hoods, “stealing” from the wealthiest cannery and fish trap owners, to the advantage of the little guy. However, in “saving” salmon from illegal harvest in one country’s waters, law enforcement officials might easily be perceived as allowing fish to cross the border where foreigners would benefit from the harvest. It is a complex world, indeed, that is revealed in The Nature of Borders.

The river as a common space

picture: Ohio History Central

Matt Axtell recently posted "Customs of the River: Governing the Commons within a Nineteenth-Century Steamboat Economy". The abstract:

This paper uncovers a lost world indigenous to the legal history of the United States, a place where law was "used" as an instrument not in a way familiar to readers of Willard Hurst, as a means to identify natural resources as private property to be allocated for exploitation by the highest bidder, but instead as a means to preserve landscapes as common property sustainably enjoyed by a multiplicity of actors for commercial ends. Focusing upon a single suit brought in 1854 to assign liability for a steamboat collision, where the issue became whether pilots followed the "customs of the river" at a particular bend in the Ohio River, the paper relates how through the "customs of the river" inquiry, Jacksonian judges in the 1830s and 1840s permitted a wild, unimproved river to speak at trial in order to keep American environments open to the "disorganized public" as a whole. By the 1850s, pressed by insurers seeking standardized commercial rules of the road, federal administrators promoted a more uniform, state-managed vision. To maintain the river’s status as a "common highway" with the "customs" inquiry now out of fashion, Humphrey Leavitt, the Jacksonian judge in this case, eventually developed new rules that shared the costs of navigation between private actors in a way that maintained the Ohio River as a privately-ordered common space.

Property Constructs and Nature's Challenge to Perpetuity

photo: www.melletteforestry.com

Jessica Owley recently posted "Property Constructs and Nature's Challenge to Perpetuity". While the article is not historical, it treats the question of how law deals with a changing environment over time from another angle. The abstract:

The Colorado Doctrine

I'm happy to report that Michael Blumm has posted "Antimonopoly and the Radical Lockean Origins of Western Water Law", a review of my book, The Colorado Doctrine: Water Rights, Corporations, and Distributive Justice on the American Frontier (Yale UP, 2012). From the abstract:

This review of David Schorr's book, The Colorado Doctrine: Water Rights, Corporations, and Distributive Justice on the American Frontier, maintains that the book is a therapeutic corrective to the standard history of the origins of western water law as celebration of economic efficiency and wealth maximization. Schorr's account convincingly contends that the roots of prior appropriation water law -- the "Colorado Doctrine" -- lie in distributional justice concerns, not in the supposed efficiency advantages of private property over common property. The goals of the founders of the Colorado doctrine, according to Schorr, were to advance Radical Lockean principles such as widespread distribution of water to current settlers and avoiding monopolization of the resource by large landowners and corporate speculators. The book explains how western water law doctrines like the abolition of riparian rights, beneficial use as the basis and measure of water rights, the sufficiency principle, the no-injury rule limiting the transferability of rights, and public ownership of water all served these Radical Lockean goals. Schorr generally downplays the significance of temporal priority, thought by many to be the hallmark of western water law, and he explains the early Colorado courts surprising and consistent favoring of small-scale farmers over large-scale corporations like ditch companies.

The review was published in Hastings West-Northwest Journal of Environmental Law & Policy. The book has also been reviewed in American Historical Review, Arizona Water Resource, Environmental History, Journal of American History, Pacific Historical Review, University of Denver Water Law Review, Water History, and Western Historical Quarterly.