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

CFP: Law & Environment in the Indian Ocean World

[Excerpted from H-Announce:]

Ordering the Anthropocene: Law & the Environment in the Indian Ocean World  

A workshop convened by Debjani Bhattacharyya (Drexel University) and Laurie Wood (Florida State University)4-5th October 2019

Hosted by the Department of History,  Drexel University, with the generous sponsorship of the American Society for Legal History & Drexel University

What can historians of law achieve from engaging with their colleagues studying environmental changes over time? How have emerging regulatory regimes (imperial, property-oriented, maritime, medical, etc.) joined the domains of science and law in new ways? And how can legal historians retool their methods to study deep histories of landscape transformations and climate? These questions are especially pertinent for the Indian Ocean region, where these concerns have both past and contemporary relevance: e.g. rising sea levels in the Maldives and Andaman Islands; coastal erosion and disputes over new-land formation along the littorals of Bay of Bengal; island-building in Singapore (with sand from Gulf states); disaster relief following the 2004 tsunami and earthquake, which especially affected Indonesia and Malaysia; food security around the Horn of Africa; and some of the world’s busiest shipping routes.

*****

The workshop will consist of 4 panels, with 2 presenters in each panel. We will pair legal historians with historians of environment to explore how common terminology around evidence, witness, reason, expertise is affected by concepts of time that are distinct in each discipline. We welcome papers exploring the following questions broadly:

• Where does law/do legal regimes collide with the material world?
• Where/when/how/why do natural phenomena become entangled in ordering regimes?
• How do these relationships (re)configure the human as social (e.g. relational, hierarchical, vocal) and material (e.g. embodied, constrained by lifespan, etc.)?

More details on H-Announce.

Andaman Islands (Venkatech K)

The Wild and Scenic Rivers Act at 50

John Day River, Oregon

Michael Blumm and Max Yoklic recently posted "The Wild and Scenic Rivers Act at 50: Overlooked Watershed Protection". The abstract:

The Wild and Scenic Rivers Act (WSRA) marked its fiftieth anniversary in 2018 without much fanfare. The WSRA has been somewhat overshadowed by the Wilderness Act, which preceded it by four years, and by the National Environmental Policy Act and the pollution control statutes which followed in the 1970s. But the WSRA was a significant conservation achievement, has now extended its protections to over 200 rivers, and has the potential to provide watershed protection to many more in the future. This article explains the statute and its implementation over the last half-century as well as a number of challenges to fulfilling its laudable goals of protecting free-flowing rivers, their water quality, and their “outstandingly remarkable values.” We make a number of suggestions to the managing agencies and to Congress if the WSRA’s achievements over the next half-century are to match the last fifty years, including reviving congressional interest in study rivers, updating managing agencies’ river plans to focus on non-federal lands within river corridors, and ensuring that those river plans provide the watershed protection Congress envisioned when it included a significant amount of riparian land within WSRA river corridors. We also call for a new emphasis on rivers that should be studied for their restoration potential and for more states to take advantage of the statute’s unusual pathway for state-designated rivers to gain WSRA protections.

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)

Roman law and modern nuisance

Vanessa Casado Pérez and Carlos Gómez Ligüerre recently posted "From Nuisance to Environmental Protection in Continental Europe". The abstract:

This paper analyzes the evolution and complexity of the legal response to neighboring conflicts in European civil law countries. All of the civil codes analyzed (France, Germany, Spain, Netherlands, and Catalonia) are based on Roman Law rules that are not always clear. The fuzziness of those Roman Law rules explains, in part, why despite this common origin, the Civil Codes did not respond homogeneously to nuisances. The first subsection briefly describes the institution of nuisance in Roman Law. Then, the paper describes the original codification of nuisance and the changes in the treatment of this institution. After assessing the initial divergence and the trends towards similar rules across jurisdictions, the paper explains the potential forces of convergence at the European level: the Draft Common Frame of Reference, the European Union Environmental Liability Directive, and the decisions of the European Court of Human Rights. It is important to note that this article only focuses on regulations and remedies related to non-trespassory invasions on real property, not on non-invasive, aesthetic nuisances.

Tyne After Tyne

H-Water recently posted a review by Leslie Tomory of Leona Skelton's Tyne after Tyne: An Environmental History of a River's Battle for Protection, 1529-2015 (White Horse Press, 2017). An excerpt from the review:

The first two chapters deal with the earlier period from 1529 to the mid-nineteenth century. The history begins when the Crown named the mayor and aldermen of the Newcastle Corporation the conservators of the Tyne and its tributaries via a parliamentary act. The purpose was to preserve the freedom of navigation from encroachment and to prevent silt from blocking the channel. From that time, the river’s conservators considered applications from riparian landowners to do works that could alter the river’s flow, such as the construction of docks. The corporation’s activity in this role was only sporadic to 1613, when new bylaws were passed regulating various activities along the Tyne, such as waste disposal and the construction of wharves. From this point onward, the corporation every year appointed water bailiffs and river jurors to monitor and hear cases of contraventions. These institutions continued to exist until 1835 when municipal reform laws replaced them with a River Committee. Skelton argues that the activity of the Tyne river court can be seen as a form of environmental regulation that prevented the overdevelopment of the river. In doing so, she tries to seek similarities with the environmental regulations that would emerge in the twentieth century, while recognizing that the motivations were to preserve the river for economical motives. While she is correct to point out that modes of environmental preservation existed long before the late nineteenth century, the commonalities with twentieth-century movements, which she mentions in a number of places, seem overdrawn.

The next chapters describe the Tyne Improvement Commission (TIC) activities from 1850 to 1968. The commission was created by Parliament with a mandate to foster the river’s economic utility. This commission’s principal interest was above all on the trade that flowed down the river. As in the earlier period, this included keeping its central channel deep and free-flowing for ship traffic. It developed a degree of expertise by employing a well-paid engineer to report on proposed works along the river, as well as waste disposed into it. The TIC was concerned with waste discharged into the river but only because it could be a barrier to navigation. This narrow interest meant that almost all applications for docks, sewers, and other structures along the river were approved. Whatever interest there was in preserving nature, on an institutional basis at least, was found in the Tyne Salmon Conservancy (TSC). It was founded in 1866 in the wake of Royal Commissions on salmon conservancy and was given the mandate to protect the fish in the river. Skelton argues that the TSC and its successors built up knowledge of the state of the fish in the Tyne (and other rivers in the area) that, while not producing immediate results, nevertheless proved valuable for environmental protection in the long term, especially after the 1950s. For example, scientific studies from the 1920s and 1930s explored water quality and fish species. The TSC made a concerted effort in these years to motivate a cleanup of the river as it became ever more polluted with effluent. Efforts to get the funding necessary for this from the central government, however, failed so that by 1940s, the Tyne was in worse shape than ever before. The 1950s were little better in this regard. The slow recovery from the Second World War and its accompanying austerity offered little scope for spending on environmental protection, even as local campaigns tried to bring attention to the problem. Untreated sewage continued to flow into the river. Finally, in the 1960s the situation began to change. Two new bodies were created to conserve watercourses in the area and to build sewer systems to spare the rivers. The Tyneside Joint Sewerage Committee organized the funding for a new sewer system, with construction beginning in 1972.

Call for applications: Masters/Doctoral/Postdoctoral fellowship -- Water Law in Mandate Palestine

This call is for a one-year or semester-long fellowship for a graduate student wishing to work on the history of water law in Israel/Palestine or a related topic (such as the history of water law in a related jurisdiction, the history of related areas of law in Israel/Palestine, legal transfers in the British Empire, etc.). The fellowship is part of my Israel Science Foundation-funded research project: "Private and Public Water Rights in Mandate Palestine and Early Israel". 

TAU Law and its Berg Institute for Law and History are vibrant and collegial centers of legal history where candidates can expect interactions with a variety of interesting scholars in the field, and access to a wide range of historical and legal databases is available.

Eligible candidates will be one of the following:

• a recent recipient of a doctoral degree in a relevant field wishing to spend a year of postdoctoral research at TAU Law;

• a candidate for a research degree in another university, or in another faculty of TAU, wishing to spend a period as a visiting researcher at TAU Law;

• a candidate for an LLM or PhD degree TAU Law's Zvi Meitar Center for Advanced Legal Studies;

• an applicant for an LLM or PhD at the Meitar Center (candidates must apply separately to the Meitar Center for admission, and receipt of the fellowship will be contingent on acceptance to a degree program).

• a cover letter describing a research agenda and its relevance to the topic of the history of water law in Israel/Palestine

• c.v.

• transcript of grades from last degree

• 2 letters of recommendation sent directly to berg@tauex.tau.ac.il

• writing sample

The fellow will receive a monthly stipend of between approximately ILS 4,500 (for masters students) and 11,000 a month, in accordance with university rules and subject to available matching funds, and also some funding for travel to conferences. TAU students will also receive a tuition waiver. The fellow may re-apply for funding in subsequent years, university rules permitting.

The fellow will be expected to participate in weekly workshops and seminars at TAU, and in general be in residence at TAU.

Interested individuals should send the following documents (in English or Hebrew) to berg@tauex.tau.ac.il by 15 Feb 2019:

Notification of the fellowship award will be made quickly.

Please address any inquiries to berg@tauex.tau.ac.il.

The Santa Barbara oil spill

Richard Frank posted yesterday at Legal Planet on the 50th anniversary of the Santa Barbara oil spill. Some excerpts:

In many ways, however, the January 1969 Santa Barbara spill remains the most consequential and transformative environmental disaster in American history.  That’s true for several related reasons.  First, it was the inaugural such environmental disaster captured and broadcast into millions of U.S. households on the evening news.  For weeks, the major TV networks provided gripping, daily accounts of the biological damage and adverse economic effects produced by the Platform A blowout.  And that had a profound effect on the national psyche, with televised footage of dead and dying animals, fouled beaches and oil-saturated ocean waters underscoring in the most stark way the myriad costs associated with oil and gas development in coastal waters.

Second, the Santa Barbara oil spill provoked a strong and immediate response from government leaders.  Local officials complained bitterly to the media and public about the lack of adequate environmental controls and oil spill response efforts, noting presciently that the federal government that had issued the oil and gas leases–thereby earning substantial royalties from the oil companies’ offshore development activities–had an inherent conflict of interest when it came to regulatory oversight of those same activities.  Federal officials had a more muted reaction to the spill: President Richard Nixon visited the area to view the spill and cleanup efforts on March 21st, telling the assembled crowd, “…the Santa Barbara incident has frankly touched the conscience of the American people.”  But on April 1st, a hastily-adopted, temporary federal drilling ban was lifted, and oil and gas development in federal waters resumed off the California coast.

Longer term, however, the Santa Barbara spill would have a direct and positive effect on American environmental policy and law.  Later that year, Congress would enact the National Environmental Policy Act (also a half century old this year).  And NEPA was but the first in a torrent of environmental legislation passed by Congress over the next decade–including the Clean Air Act, Clean Water Act and Endangered Species Act–that to this day remains the basic framework of federal environmental law.

*****

The Santa Barbara oil spill also catalyzed a state government response that quickly made California a national and international leader when it comes to environmental policy and law.  In the immediate wake of the disaster, the Republican-dominated California Legislature created an interim Committee on Environmental Quality, directing it to develop recommendations for state environmental legislation.  The most important outgrowth of that initiative was passage in 1970 of the California Environmental Quality Act; modeled on but significantly stronger than NEPA; CEQA remains California’s most important, cross-cutting environmental law, as well as the most powerful “little NEPA” statute in the nation.  And when the California Legislature balked at passing a law specifically designed to prevent ocean and coastal damage exemplified by the Santa Barbara oil spill, state voters responded by enacting an initiative measure in 1972 creating the California Coastal Commission and the most powerful system of coastal regulation and preservation in the nation. 

Trends in environmental treaty-making

Legal Planet recently mentioned the University of Oregon's International Environmental Agreements Database Project. The project has a ton of information on environmental treaties, including lists of treaties by date, subject, and lineage; a library of historical documents on marine mammal protection; and more.

The graph below (click here for a larger version), taken from the main page of the website, charts the number of of environmental treaties, protocols, and amendments by decade (up to 1950) and then by five-year period. The quantitative data highlight some features that beg for some interpretation and context: A small surge in activity in the 1890s (not surpassed until the 1940s), a huge jump in the 1950s (more than three times the activity than the preceding decade), and a continuing drop since the mid-1990s peak (presumably associated with the 1992 Rio Earth Summit).

Thoughts anyone?

Rivers, Rifles, Rice, and Religion

Law and History Review recently carried a review by Jaakko Husa of John Haley's Law's Political Foundations: Rivers, Rifles, Rice, and Religion (Edward Elgar, 2016). From the review:

In this extraordinarily sweeping volume, Haley analyzes and discusses how certain legal and political systems historically evolved in varying ways. Importantly, these systems share common threads when it comes to the political foundations of their law and the modes of their law's enforcement. Haley explains and compares three, which he calls dominant, legal orders so that past and present are bridged. The underlying idea is to bind the storytelling around narratives of rivers, rifles, rice, and religion.

*****

Chapter 2 is based on the idea that “legal institutions develop in conjunction with the capacity of rulers to appropriate wealth and acquire revenue and the demands of needs they confront for the allocation of the material resources they control” (37). This chapter also explains the storytelling narratives of the book. First, basic geographical conditions, such as climate, terrain, and, first and foremost, rivers, are pre-eminently determinative: “Law and ‘civilization’ emerged first along rivers” (40). The Tigris, the Indus and the Ganges, the Nile, the Yellow, and the Yangzi rivers are mentioned.

Control of rivers and their wealth-producing basins has been, argues Haley, tremendously important for the development of legal and political systems. A second key factor is warfare (i.e., rifles) because warfare and the accompanying need for better weaponry and human resources had continuing political and legal consequences. Third, rice production also had major consequences for the foundations of law, as it requires interdependency and cooperative behavior. Fourth, religion is key because of its storytelling narrative, as enduring political and legal orders reflect the commonly shared beliefs and values of those who are governed.

Chapter 3 then deals with the specific foundation of public law and private ordering in China by discussing rivers, rifles, and rice. The patterns of agricultural production caused shared habits of interdependence and cooperation influencing the modes of social organization in the whole region connected by rivers. Haley explains the tension between so-called Confucians and Legalists, showing that Legalist thinking had an important role in China to the effect that morality and law were seen as completely different domains. Here law remained a secondary instrument of social control enhancing the birth of a centralized form of governance without a religious base. On the whole, for Haley, China exemplifies public law ordering.

Chapter 4 then explains in a detailed manner the foundations and history of private law and private ordering in Japan by emphasizing the role of rice and warfare. In Japan's case, the lack of rivers was a key factor that prevented the birth of the centralized rule that had taken place in China. Rice production was the major source of sustenance and wealth, but producers were denied access to governmental power. This led eventually to warrior rule and development of adjudication. In the absence of imperial power, adjudication of private claims developed into a routine function of governance. Even during the Shogunate, the regulatory reach of central government remained modest. In short, Japan exemplifies private law ordering.

The book also includes chapters on law in Europe and in Hispanic America.