Property in Gaza's sands

Dotan Halevy recently published "Sand and the City: On Colonial Development and its Evasive Enemies in Twentieth-Century Palestine" in Environment and History. The abstract:

This article traces the colonial origins of a crucial aspect of the environmentalist discourse since the mid-twentieth century - the idea that planetary substances should be stripped of ownership rights and become in and of themselves the subject of rights. The article looks closely at the Gaza region under British mandatory rule to explain how the rehabilitation of Gaza city, devastated during WWI, has failed. Gaza's reconstruction efforts, the article argues, collided with the British initiative to arrest the drift of dunes along the coast of southern Palestine. Throughout this project, the British administration extinguished Arab property and usufruct rights to expand state domains. They backed this policy with an elaborate ecological perception that saw sand and its inhabitants as agents of environmental ruin. The quarrel that has developed thus made the Gaza region an imperial test ground for probing what sand is? Does it have a history? And, therefore, can it be claimed as an object of rights? Divorcing nature from culture, the British administration in Palestine rejected the validity of sandy lands' economic past and constructed them as inhospitable 'wastelands' - a purely natural element. As such, sands could be subjected to governmental 'development' through afforestation and urbanisation while time-honoured agricultural practices and land rights of the local coastal population were neglected.

Map of Gaza dunes, Survey of Palestine (1931)

Nuisance, planning and the common law in Bombay

Continuing themes from recent posts on British India and on nuisance: Sukriti Issar recently published "Nuisance, Planning and the Common Law in Late Eighteenth-Century Bombay" in The Journal of Legal History. The abstract:

The literature on the legal transfer of English property law to colonial South Asia has long focused on the agrarian context. Urban property and the built environment remain understudied. This article explores how the common law of nuisance found its way into the workings of a Committee of Buildings in late eighteenth-century Bombay. An analysis of the internal files of the Committee of Buildings shows that the Committee focused on public and private nuisance mitigation. Residents filed private party nuisance complaints, taking up nuisance law in their own disputes with neighbours. The Committee’s attempts to deal with public nuisances highlights the resistance of local residents. The conclusion considers the broader question of how we can conceptualize the actors, vectors and mechanisms involved in legal transfer, and its reception. Alternative explanations such as influences from pre-English colonial regimes, the impact of local custom, and the balance between common law and statute are evaluated. Rather than a seamless legal transfer, nuisance in early colonial Bombay demonstrates dialogue, resistance and appropriation.

Plan of Bombay about 1760, from James Douglas,
Bombay and Western India. A series of stray papers (1893)

The reasonableness standard, Israel's current crisis, and Edward Coke

As protests continue to erupt in Israel over the government's proposal to oust the power of courts to review decisions of the government and its ministers for reasonableness, I thought it worth taking a look at the historical origins of this doctrine in an area of particular interest to this blog - water law.

Israeli administrative law's reasonableness standard was inherited from the British, who ruled Palestine from 1917 to 1948 and imported much English law and legal culture to the middle eastern jurisdiction. In the 1928 Supreme Court case of AG v Altshuler ([1920-1933] PLR 273), for instance, the court held that a municipal bylaw of Tel Aviv was invalid due to unreasonableness, relying on the English precedent of Kruse v Johnson ([1898] 2 QB 91).

Sir Edward Coke

As many will know, the reasonableness standard was apparently introduced to English law by the 1598 decision of the Court of Common Pleas in Rooke's Case (5 Co Rep 99b, 77 Eng Rep 209). At issue was the power given to the Commissioners of Sewers by statute (the 1531 Statute of Sewers) to assess lands adjoining water courses in order to fund the building of works to protect adjacent lands from flooding. The Commissioners assessed a certain Carter, who had seven acres of land flood-prone adjoining the Thames, with the costs of repairing the banks of the river along a long segment of the river, leaving a further 800 acres, possessed by others and similarly threatened by the waters, free of charge. In their defence, the Commissioners pointed to the language of the statute (s 3), which gave them the power to make repairs 'as Case shall require, after your Wisdoms and Discretions'. Edward Coke's report explained what he saw as the rationale behund the court's rejection of this claim:

Notwithstanding the words of the commission give authority to the commissioners to do according to their discretions, yet their proceedings ought to be limited and bound with the rule of reason and law [emphasis added - DS]. For discretion is a science or understanding to discern between falsity and truth, between wrong and right, between shadows and substance, between equity and colourable glosses and pretences, and not to do according to their wills and private affections ; for as one saith, talis discretio discretionem confundit [such discretion confuses discretion].

So administrative discretion, explained Coke, must be subject to 'the rule of reason and law'.

One might have legitimate criticisms of the way the reasonableness standard is currently applied in Israeli law, but it is clear that the current government's main motivation in its proposed legislation is simply the desire to be free of the rule of reason and law - which explains why there are hundreds of thousands of us out on the street protesting...

Decolonising the Nile water agreements

The latest issue of the Journal of the History of International Law / Revue d'histoire du droit international has an article by Fekade Abebe, "Exclusion vs Cooperation in the Utilisation of Transboundary Watercourses: The Case for Decolonising the Nile Water Agreements". The abstract:

The relationship between Egypt and Ethiopia was marked with tension for centuries due to the utilisation of the Nile river. Recently, it took a turn for the worst after Ethiopia announced it is building the Grand Ethiopian Renaissance Dam (GERD) on the Nile river. This article argues that one important explanation for the deep-seated disagreements between Egypt and Ethiopia is the history of the legal instruments frequently invoked which were set up to safeguard the colonial interest of Britain over Egypt and the entire upper Nile region. Britain’s use of these legal instruments to advance its colonial domination of the region, with disregard to the interests of native communities, had left a legacy of exclusive utilisation over the river which haunts the current legal discourse. The article argues that the Nile basin countries need to acknowledge this colonial legacy in the legal discourse and need to move towards cooperation.

The legal environment and communal irrigation

The latest issue of the International Journal of the Commons has an article by Steven M. Smith, "Dynamics of the Legal Environment and the Development of Communal Irrigation Systems". From the Introduction (citations removed):

Archinia, Acequia System of El Rancho de las Golondrinas

Given the importance of external forces to the success of the commons, calls to integrate political ecology with the commons literature are becoming a common refrain. The combination can be approached from both directions: how do power structures shape institutions and how do institutions shape power structures? I take a historical perspective to explore both questions and their dynamic relationship. Specifically, I consider how external legal changes alter the incentives for how local users organize themselves and how those changes in local organizations alters the political coalitions, affecting subsequent legal changes.

To explore the question, I document and analyze the evolution of the legal environment and the development of communal irrigation systems, known as acequias, in current day New Mexico, US. Acequias have been held up as a case of a long-lived successful communal management regime of a natural resource . In the region of study, some acequias date back to the 16th century when Spain first colonized the area. The acequias have experienced sizeable shifts in their external legal surroundings, most rapidly and significantly during the US territorial period (1851–1912), that can be used to assess the relationship of external legislation and communal irrigation systems.

More on water by-laws in Mandate Palestine

I recently posted a piece on H-Empire, based on my article, "Horizontal and vertical influences in colonial legal transplantation: water by-laws in British Palestine" (open access) (see also my recent post on this blog). An excerpt:

Zoltan Kluger, Dizengoff Square Circle in Tel Aviv, 1938 (National Photo Collection)

I ask two questions about the local bylaws enacted in the Mandate period (mainly in the last decade and a half of British rule, which ended in 1948) in the field of water supply and sewage (I'm working on a wider project on this history of water law in Mandate Palestine): Did the initiative for these bylaws, as well as the legal norms and language embodied in them, come from the residents of Palestine and their elected local governments or was it primarily the result pressure applied by the British rulers? And did legal influence cross communal boundaries, between Jewish and Arab local authorities, or did Arab towns tend to copy from other Arab towns, and Jewish from Jewish? The first question I conceptualize as one of "vertical" influence; the second as "horizontal".

Ecological consequences of Spanish colonialism

Last year's The Americas published an article by Christopher Woolley, "'The Forests Cannot be Commons': Spanish Law, Environmental Change, and New Spain's Council on Forests". The abstract:

This article examines the sylvan political ecology of late colonial New Spain and the colonial government's attempt to address deforestation through the Council on Forests, the first body in the kingdom's history dedicated to the conservation of natural resources. Drawing primarily from the corpus of documents produced by and remitted to the council, this article gives a trans-regional perspective on colonial forest use and argues that the Spanish crown's usurpation of indigenous communities' eminent domain over forests was the first step in a process that over centuries progressively severed the cultural ties that bound communities and forests by converting common-pool resources into open-access commons. The catastrophic mortality of the Spanish invasion was the second step, which rendered conservation measures seemingly unnecessary among both woodcutters and officials. But it was during the eighteenth century that older Habsburg notions of protectionism intersected with economic and political changes associated with Bourbon rule to further compel this cultural severance. While previous works have studied the ecological impacts of mining, ranching, and flood control, this article moves beyond the study of a single industry to suggest some of the larger ecological consequences of Spanish colonialism.

Forest in the Sierra Juarez, Oaxaca, Mexico (credit: Prsjl)

Soviet water law

"And Defeat Drought", by Viktor Govorkov (1949)

Both Central Asian and Soviet water law are underexplored in the English-language literature, so I was excited when a friend recently pointed me to an article by Beatrice Penati in the Journal of the Economic and Social History of the Orient, "Continuities and Novelties in Early Soviet Law-Making about Central Asian Water". The article uncovers not only generally unknown histories of water law, but new jurisprudential angles as well. Instead of the abstract, here's an excerpt from the introduction (notes omitted):

The present essay explores the definition of the water rights and water-related obligations of the peasants vis-à-vis the Soviet State. On one level, this study highlights the very high degree of continuity in both personnel and goals between pre- and post-revolutionary “lawfare” in the field of Central Asian water rights and water usage. It also shows how, although Bolshevism offered a solid ideological justification for the supremacy of State rights, it was not easy for this personnel to codify the State-centric approach to water governance in the new Soviet context. As the reader will discover, this is more the story of attempts to regulate, than of effective regulation.

The close observation of these attempts reveals how, in the field of water rights, one could find examples of two opposing situations: a stratification of formal regulations none of which was considered as ultimately binding, and texts that bound even in the absence of a formal sanction. This begs a few further reflections: first, one can ask whether this disorder was deliberately used as a tool of Soviet power, as argued recently by Christian Teichmann, also writing about Soviet irrigation in Central Asia. Second, one must reconsider what made a law in the light of socialist legal theory, thereby nuancing the notion that socio-economic change (here, in the field of water rights) originated from State decisions.

By analysing systematically what inspired and stymied these attempts at the regulation of water, this essay contends that early Soviet “lawfare” about Central Asian water—especially efforts at systematic codification premised on the supremacy of State rights—was constrained by two factors. The first, in continuity with the colonial period, was the persistent idea that indigenous water systems were ultimately impenetrable to outside observers: due to their supposed “irrationality” and “primitiveness”, these systems had been (and still were) regarded as both economically inefficient and impossible to reform, to the point that concessions to “custom” had to be made even after the consolidation of Soviet rule. The second, new factor was the early Soviet de-colonisation imperative, understood here (following Georgii Safarov) as both liberation from the relics of settler colonialism and from those “exploitative elements” which Russian imperialism had supposedly nurtured. This ideological option marked a profound discontinuity with the Tsarist regime in Central Asia, by defining the perimeter of the experts’ legislative initiative. That this factor was ultimately decisive is shown, by contrast, by the fact that socio-economic realities in the field of water and land rights were reshaped more by revolutionary initiatives, than by systematic efforts to change water laws. Despite (or because of) the proliferation of texts, drafts, and commissions, effective transformation did not require more (or more careful) law-writing, but for the Soviets and Party to invest other power resources (e.g. propaganda, coercion, financial means) to achieve a degree of social mobilisation in favour of radical reforms.

For earlier Imperial Russian water law in Central Asia, see here. 

Early American history and modern American environmental law

A recurring theme in scholarship on environmental regulation is the roots of the American approach to environmental regulation, and to what extent this approach is exceptional. 

April's issue of Studies in American Political Development has an article in this vein by David Brian Robertson, "Leader to Laggard: How Founding Institutions Have Shaped American Environmental Policy". The abstract:

The U.S. led the world in environmental policy in the 1970s, but now lags behind comparable nations and resists joining others in tackling climate change. Two embedded, entwined, and exceptional American institutions—broad private property rights and competitive federalism—are necessary for explaining this shift. These two institutions shaped the exceptional stringency of 1970s American environmental laws and the powerful backlash against these laws that continues today. American colonies ensured broad private rights to use land and natural resources for profit. The colonies and the independent state governments that followed wielded expansive authority to govern this commodified environment. In the 1780s, Congress underwrote state governance of the privatized environment by directing the parceling and transfer of federal land to private parties and of environmental governance to future states. The 1787 Constitution cemented these relationships and exposed states to interstate economic competition. Environmental laws of the 1970s imposed unprecedented challenges to the environmental prerogatives long protected by these institutions, and the beneficiaries responded with a wide-ranging counterattack. Federalism enabled this opposition to build powerful regional alliances to stymie action on climate change. These overlooked institutional factors are necessary to explain why Canadian and American environmental policies have diverged.

Hartog on property in land and water

Monk's Ditch in the Gwent Levels, Wales, land reclaimed in the Roman period

As part of his stint as a guest blogger at Legal History Blog, Dirk Hartog recently blogged about his own early work on waterfront development in New York City and his encounter with Debjani Bhattacharyya’s Empire and Ecology in the Bengal Delta: The Making of Calcutta. Some excerpts, followed by a quibble of mine:

I spent many hours reading and rereading those waterlot deeds [granted by the eighteenth century Corporation of the City of New York]. I wrote many pages that unpacked much of the arcane property law doctrine that waterlot grants incorporated. In the end, I managed to put together what at the time felt to me like a satisfying portrait of how a waterlot grant exemplified early modern governance. I argued that corporate leaders were solving a fundamental problem of the time: about how to achieve necessary public purposes — like building wharves and docks for a seafaring city and also street construction and cleaning —without either a municipal workforce or a capacity to levy taxes. By exchanging waterlots for services and development by individual proprietors, the corporation enlarged the borders of the city, and it laid the foundation for what would become a global port, a world city.

In those days, I relentlessly situated those waterlot grants within the history of the corporation, implicitly situating the “municipal corporation” of New York City within the history of the business corporation. My attention was always focused on the public-private split, and little else. Which is not really surprising, given how much attention the public-private split held at that time in what I was reading, in the contemporary and argumentative field of legal history.

The making of Calcutta

More on Debjani Bhattacharyya: Rohan D'Souza recently reviewed her Empire and Ecology in the Bengal Delta: The Making of Calcutta (Cambridge UP, 2018) for H-Water. D'Souza writes:

Empire and Ecology in the Bengal Delta announces a shift in gears within the bourgeoning and bustling field of the environmental histories of South Asia. Instead of taking the familiar route that revisits themes in the existing canon—forests, irrigation, and carnivore control—Debjani Bhattacharyya cuts an altogether fresh path by exploring how radical ecological change was critical to the making of urban colonial Calcutta (today’s Kolkata). The core claims in the book pivot on the many arduous British efforts from the late eighteenth century onward to transform Calcutta’s soggy marshy origins into landed concrete spaces—the firmed-up surfaces upon which were built residential, commercial, and industrial infrastructure and the basis for widespread financial speculation in real estate.

Whereas much of the detail on the drying out of British India’s premier colonial city can be found in a fairly voluminous documentation on drainage works, reclamation projects, and hydraulic engineering schemes, these admittedly technical accounts, we are cautioned, fail to meaningfully grasp the actual “secrets-of-land-making” (p. 1). transformation of “floating watery soils” into firm land, Bhattacharyya argues, was principally an ideological project that was profoundly underwritten by the notion of landed property, which, as a “legal technology” to “demarcate land, marsh, accretion and water,” actively triggered the clotting of Calcutta into urban soil (p. 23). Colonial landed property, moreover, by being set on a treadmill of economic valuation inevitably transmuted into the archetypal capitalist commodity: subject to the logics of the market and the relentless pursuit of profit. Unsurprisingly, therefore, as Calcutta in the early decades of the twentieth century began to explode into a crowded city—short on space, cramped with people, and lacking affordable housing—a thriving and ferocious urban land market burst forward. While Bhattacharyya does provide a riveting account of the aggressive jostling for land among an increasingly vocal working class, sundry lobbies of builders, extortionate landlords, the oscillating fates of rent speculators, and various interventions by municipal authorities, the discussion, however, is more pointedly aimed at returning us to the “secret.”

What finally emerged from the protracted confrontations over land scarcity, we are told, was a less advertised, if not entirely unstated, consensus among the various contending urban interests: that the outlying marshes and untidy swamps were “lands-in-waiting” rather than distinct hydrological phenomena (p. 172). This unanimous and determined call for cutting off the city from its “watery hinterlands,” in Bhattacharyya’s estimate, actually sought to mask a radical ecological rupture by which land and water were meant to be split into distinct and separable entities, instead of being acknowledged as ecologically entwined domains and integral to Bengal’s deltaic environments.

More at H-Water.

The Million-Dollar Duck

The American Historical Review recently published Miranda Johnson's "The Case of the Million-Dollar Duck: A Hunter, His Treaty, and the Bending of the Settler Contract". The abstract:

In settler states such as Canada, indigenous peoples’ claims for sovereignty in the late twentieth century became matters of intense public and political debate. Provoked by widespread indigenous rights activism of the 1970s, the Canadian state embarked on a large-scale examination of claims for rights and restitution. By focusing on the 1962 case of a duck hunter who insisted on his treaty right to hunt as he pleased in a Canadian borderlands region that was becoming more tightly woven into the fabric of the settler nation, this article argues for the value of recovering the discursive strategies of indigenous peoples in making sovereign claims prior to 1970s activism. I suggest that such claims were effective in bending the “settler contract,” which refers to the founding of settler states in dispossession and the silencing of indigenous actors. My approach brings to the fore a distinctive form of non-elite politics, what I call “treaty talk,” or the vernacular stories, civic rituals, and political disputes concerning the treaty promises that Canadian authorities made to northern indigenous communities earlier in the twentieth century. Although treaty talk did not break the settler contract, it posed a significant challenge to settler law and led one judge to reinvent a Canadian myth of benevolent empire.

Dene men gathered for Treaty Day at Fort Resolution, ca. 1924

Fishing rights and colonial government

Shourya Sen and Richard Adelstein recently posted "Fishing Rights and Colonial Government: Institutional Development in the Bengal Presidency". The abstract:

We examine the evolution of fishing rights in colonial Bengal through a series of cases heard at the Calcutta High Court in the 1880s and culminating in the passage of legislation in 1889. We posit an implicit relational contract between the colonizing British and the landowning class in colonial Bengal as a way to understand the concurrent evolution of fishing rights and institutions of governance in the region. The system of incentives created by this contract determined the development of fishing rights at a crucial moment in the history of colonial Bengal and, more broadly, became a primary mechanism of institutional change in the region. The analysis also shows the Calcutta High Court to have acted, albeit in vain, as a truly independent judiciary.

Macchi, a Muslim caste of fishermen, from Tashrih al-aqvam (1825)

Enclosure in Israel and Palestine

In developments close to home, the latest issue of the New York Review of Books has a review by Raja Shehadeh of Gary Fields's Enclosure: Palestinian Landscapes in a Historical Mirror (U. California Press, 2017). Some excerpts:

Starting in the mid-nineteenth century, a series of legal developments in the Ottoman Empire—which ruled Palestine until 1917—had enabled the growth of... large land holdings. They included the promulgation of the Ottoman Land Code of 1858, which attempted to eliminate the musha system, whereby land was held in common, and required that the cultivator-turned-owner register his land with Treasury officials.

*****

The legal processes the Ottomans had begun were continued in the years after the end of their rule—first by the British military occupation of Palestine from 1917 to 1922, and then when the League of Nations granted the British a mandate over Palestine from 1922 to 1948. During both periods, the British continued to revise the land laws with a view to making the land more marketable and facilitating its sale to the Zionists. Among the British figures whose ideas provided the foundation for British land policy in Palestine was Sir Ernest Dowson, who believed that what the Palestinian fellah, or peasant, needed was “enclosure and partition of the common fields.”

In his book..., Gary Fields defines enclosure as “a practice resulting in the transfer of land from one group of people to another and the establishment of exclusionary spaces on territorial landscapes.” Dowson was intent on creating blocks of property that could be surveyed and registered with the Mandate Land Authority. Mandate authorities also sought to repeal the musha system. British officials were convinced that the enclosure of common land, which had already been implemented in England, had brought about “improvement” and “progress,” and they sought to replicate it in Palestine.

This British policy represented a victory for the Zionist movement. It made it possible for more Palestinian land to be sold to Zionist Jews. 

A colonial history of the River Murray dispute

Adam Webster recently posted his article, "A Colonial History of the River Murray Dispute". The abstract:

This article examines the history of the dispute over the sharing of the waters of the River Murray between the colonies, with particular emphasis on the period from the mid-1880s to the mid-1890s. The article shows that the change in water use by the colonies during this period had a significant impact on the question of how the water should be shared between the colonies. The article examines the early legal arguments regarding the ‘rights’ of the colonies to the waters of the River Murray and argues that these early legal analyses influenced the drafting of the Australian Constitution, which in turn has influenced the way similar disputes between the states are resolved today.

Colonial aspects of international environmental law

Signing the International Convention for the Regulation of Whaling, 1946

Douglas de Castro recently posted "The Colonial Aspects of the International Environmental Law – Treaties as Promoters of Continuous Structural Violence". This is a topic that has come up before in work by Yoriko Otomo and others. De Castro's abstract:

The formation of international institutions in the twentieth century occurs under a scenario marked by the rule of colonialism and imperialism. Thus, instead of reducing inequalities in the world system, international institutions reproduce a prevalent logic of material and subjective discrimination based on a colonialist ideology marked by violence, which is communicated in a certain way so that it can justify its importance and legitimacy. The colonial violence is perpetuated under the form of symbolic violence manifested in the language that imposes a universal meaning and systemic violence that manifests itself in the "perfect" functioning of the world economic and political system as the ultimate form of development. One of the perverse and subtle dimensions of this violence is observed in the emergence of the International Environmental Law in terms of metanarratives that excludes minorities and perceptions other than the ones propagated by international institutions. The main objective of this article is identifying the dynamics in the formation of environmental treaties leading to standard results of discursive practices that feeds the process of dependence and legitimation marked by colonial ruling and structural violence. The methodological approach relies on the critical theory tenets to expose the non-emancipatory features of the current International Environmental Law by the application of the socio-legal approach to the treaties that consists of the text analysis (law), subtext (the moral aspects of the law – deep or implicit meanings), and context (the undeniable connection between law and reality). The empirical dimension is developed with the help of the computer assisted qualitative data analysis software (CADQAS) called ATLAS.ti.

Aboriginal water rights

Aboriginal men obtain water from mallee root at Yalata in South Australia, 1981
(National Library of Australia)

Peter D. Burdon, Georgina Drew, Matthew T. Stubbs, Adam Webster, and Marcus Barber recently posted "Decolonising Indigenous Water ‘Rights’ in Australia: Flow, Difference and the Limits of Law". The abstract:

This article addresses Indigenous Australian claims to water resources and how they inform and relate to current Australian law and contemporary legal thinking about future possibilities. It adopts a multidisciplinary approach, drawing from historical records, previous ethnographic investigation with Indigenous Australians, current legal scholarship, and social anthropological theory. In doing so, it analyses Indigenous dependencies on water, the history of settler colonial orientations to water bodies, the evolution of settler colonial–Indigenous relations to natural resources, and the development of the Australian legal system’s regulation of water. This provides foundations for a discussion of the limitations of settler colonial notions of property and the failure of settler colonial law to understand and incorporate the dynamism of Indigenous relationships to water, particularly the meaning and productive capacity of water flows within Indigenous cosmologies and sociocultural and ecological systems. Calling for a decolonial turn in legal approaches to Indigenous access and water resource determination, the authors explore the ways in which Australian law may need to ‘unthink’ settler colonial notions of resource ownership as a prerequisite for reformulating future water policy and planning. This reformulation relies on a more extensive legal philosophical engagement with the concept of ‘flow’, a concept that already exists in both water law and planning, but which has not been adequately theorised and enacted. A more comprehensive legal understanding of flow in the context of Indigenous understandings of, and claims to, water provides more sustainable and equitable legal and analytical foundations for managing future water resources issues. The article creates the space for a more culturally relevant notion of ‘Indigenous water rights’ and for new ways of honouring the interrelationship between water flows, meaning-making practices, and cultural continuity.

Animal colonialism

A little while back AJIL Unbound published a piece by Mathilde Cohen, "Animal Colonialism: The Case of Milk". The abstract:

Greta Gaard writes that “[t]he pervasive availability of cows’ milk today—from grocery stores to gas stations—is a historically unprecedented product of industrialization, urbanization, culture, and economics.” To these factors, I would add colonialism and international law; the latter understood broadly to include the rules considered binding between states and nations, transnational law, legal transplants, international food aid, and international trade law. Until the end of the Nineteenth Century, the majority of the world population neither raised animals for their milk nor consumed animal milk. Humans are unique in the mammalian realm in that they drink the milk of other species, including beyond infancy. With the European conquest of the New World and other territories starting in the Sixteenth Century, dairying began to spread worldwide—settlers did not set out to colonize lands and people alone; they brought with them their flora, fauna, and other forms of life, including lactating animals such as cows and sheep.

Environmentalism of the Rich

Public Books recently ran a review by Max Holleran of  Peter Dauvergne's Environmentalism of the Rich (MIT Press, 2016). Holleran writes that the book

traces the shifting tactics of mainstream environmentalism from the radicalism of the 1970s to the corporate partnerships of the 1990s, in which companies accomplished incremental changes through in-house consultations with groups like the Sierra Club. It details how many green groups began as firebrand protectors of the earth, deeply inspired by indigenous movements that opposed the sale and commodification of nature, but have since morphed into something akin to compliance departments for large companies.

*****

Green movements of the Global North and the Global South are markedly different; within that divide, unique national experiences have produced a variety of environmentalisms, some of which do not even use the name and prefer to align with indigenous rights or class-based movements. The 1970s environmental movement came of age during a time of decolonization, and many pioneers of the movement were allies of nations in the Global South seeking both political independence and more autonomy within the global economy. Dauvergne shows that most resource extraction has imperial roots, when European powers saw the wider world as a zone for the collection, and often pillage, of raw materials. The “green” decolonization movement was fundamentally anti-capitalist; it suffered when many Global North environmentalists chose to advocate for a green economy, rather than a new economy based on rethinking global trade.

Holleran writes that the book argues that increased environmental awareness has not necessarily translated into increased regulation. Rather,

Property law and flooding

William Smyth Maynard Wolfe, “Maugerville on the St. John River, New Brunswick”
(1853/1854)

Continuing our trend on water, the Osgoode Society recently announced that Jason Hall has won its Peter Oliver Prize for best published student writing for his article, "High Freshets and Low-Lying Farms: Property Law and St. John River Flooding in Colonial New Brunswick". The abstract:

Although New Brunswick was founded on private land ownership, colonists who settled low-lying land along the St. John River found that the waterway's erratic flood cycle and ever-changing nature threatened their lives and farms, and thwarted their efforts to divide riverbanks and islands into fixed parcels of private  property. This article draws upon colonial petitions, sessional court records, and colonial legislation in analyzing the response of the colonial legislature and of local governance to the challenge that the St. John River created for property rights and a private land management system dependent on static boundaries and fixed fences. In examining the colonists' attempts to adapt property law to foster appropriate responses to their changing environment and social needs, this article provides insight into the evolution of colonial law, local governance, the ecological knowledge of farmers, social conflict, and adaptations to flooding in early New Brunswick.