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Tuesday, February 28, 2012

The Case for an Aboriginal Film Commission

I received an email the other day from Troy D. Hunter, J.D. as a comment to my post on Jennifer Reid's article on the Doctrine of Discovery. But I think it is better as a stand-alone post. 

A member of the Ktunaxa first nation, Troy is a graduate of Osgoode Hall Law School articling as Aboriginal Rights and Title Coordinator at Secwpemc Nation Tribal Council. He is a proponent of extending the tradition of aboriginal histories in the form of story telling to other dramatic formats. (He is currently working on a play.)

Troy sent me a .pdf called "The Case for an Aboriginal Film Commission: An Education Revolution." I couldn't copy and paste the whole thing, but here are two excerpts:

...[T]he original peoples of Turtle Island (North America) have passed on their traditional knowledge from generation to generation through such means of an oral culture. However, that is but one method and there are many other methods such as the re-creation of an event as portrayed in song and dance in the west coast big houses. Likewise, in the prairies, we have a transference of history and knowledge which is remembered each year as sun dances are held with original teachings from the most-sacred, White Buffalo Calf Pipe Woman. It would be fair to say that it is an Aboriginal right to tell stories, to teach history, to transfer knowledge, to share ceremonies, not only within the distinctive society from whence knowledge originated from but also to other societies as a natural and normal progression of Indigenous law. Evidence of this cross-cultural connection of transference of knowledge that took place across Turtle Island over thousands of years can be found in our common Indian sign language, in our cultural practices that each took on their own distinctive ways, in our archaeological sites, in our rock art, in our grease trails, in our rivers and streams, and in our creation stories and oral histories, we have commonalities which could only have occurred by transferring knowledge from one cultural group to another....
... [I]t would only then be a natural progression of Aboriginal rights to use modern technology and formulas so as to pass on knowledge and wisdom to the future generations. This is also important because of the messages told from an original people’s perspective will be transferred to the hearts and minds of future generations and in doing so, our world will be richer for it.
Troy can be reached at if you would like to receive the entire document.

Mumme on Charter-like Claims Under Human Rights Codes on SSRN

Claire Mumme of Osgoode Hall Law School has posted "The Strange History of Charter-Like Claims Against Legislated Government Services Under the Human Rights Codes in Canada" on SSRN. The article will appear in the Journal of Law and Equality.

Here's the abstract:

In Tranchemontagne v. Ontario (Director, Disability Support Program), the Ontario Court of Appeal entered onto the most recent battleground in the world of statutory human rights law: a challenge to the content of a statutorily-created government program under the auspices of the Human Rights Code instead of under section 15(1) of the Canadian Charter of Rights and Freedoms. In recent years government services claims under the Codes, of the sort exemplified by Tranchemontagne, have gained increasing visibility. In government services claims a challenge is brought under the Human Rights Codes to the substantive content of a statute that creates a government program, or discretionary decision-making under the statute’s terms.
These claims are almost identical to ones that would otherwise be brought under the section 15(1) constitutional equality provision, and the Codes provide an almost identical remedy. They do so in a much more accessible manner, because the Tribunals are faster and less expensive. And it can be argued, the analytical framework for determining a violation of the Human Rights Codes is significantly friendlier to claimants than is the constitutional test. A government service claim under the Codes thus allows claimants to effectively bypass a constitutional claim altogether. The availability of the lower burden of proof and the more accessible human rights framework is under increasing pressure, however. Government lawyers have recently begun arguing, as they did in Tranchemontagne 2, that the same jurisprudential test ought to apply under the Codes and under the Charter. But, as this article will seek to demonstrate, the relatively straightforward question of which jurisprudential standard should apply masks the complicated history of the role of statutory government services claims within Canadian equality law.
In this paper I explore the history of government services claims under the Human Rights Codes and their relationship to Bill of Rights and Charter equality claims. I argue that, much like section 15(1) claims, there is a tension in statutory government services claims between the courts’ ability to sit in judgment over the political decisions of elected officials, and the need for counter-majoritarian protection against state decisions that violate fundamental rights. Concerns over how to balance this tension has led the Supreme Court of Canada to narrow the constitutional equality provision in claims against state spending. This indeed is a significant part of the reasons why government services claims have become more prominent under the Codes. Yet, as the history presented here demonstrates, this democratic tension has not been explicitly examined in regards to government services claims under the Human Rights Statutes. And it is because of this absence, I argue, that the issue is now starting to creep towards the surface in the current debate over the appropriate jurisprudential standard in government services cases under the Codes. Indeed, at the core of the recent trend towards merging the constitutional and statutory standards appears to be a growing judicial unease over the differences between private and public sector discrimination.

Sunday, February 26, 2012

Sykes on History of Animals on Trial

Katie Sykes of the Schulich School of Law, Dalhousie University has posted "Human Drama, Animal Trials: What the Medieval Animal Trials Can Teach Us About Justice for Animals" on SSRN. The article appears in the second issue of volume 17 of the Animal Law Review.

Here's the abstract:

The legal system generally does little to protect animals, and one aspect of its inadequacy is a matter of formal structure: under United States and Canadian law, animals are not legal “persons” with an independent right to the protections of the legal system. There are calls to expand the status of animals in the law by providing them with legal standing, the right to be represented by a lawyer, and other formal protections. But, in a way, some of this has happened before. There is a long history, primarily from the medieval and early modern periods, of animals being tried for offenses such as attacking humans and destroying crops. These animals were formally prosecuted in elaborate trials that included counsel to represent their interests. The history of the animal trials demonstrates how, in a human-created legal system, legal “rights” for animals can be used for human purposes that have little to do with the interests of the animals. This history shows us that formal legal rights for animals are only tools, rather than an end in themselves, and highlights the importance not just of expanding formal protections, but of putting them to work with empathy, in a way that strives (despite the inevitable limitations of a human justice system in this respect) to incorporate the animals’ own interests and own point of view.

Toronto Legal History Group

Although I am listed as a founder of this blog (thanks Mary), I am embarrassed to say that I have never posted. It's time I started.

People in the Toronto area interested in legal history are welcome to attend meetings of the Toronto Legal History group. We meet every other Wednesday at 6.30 at the U of T law School (Flavelle Room, Flavelle House) to discuss a paper. Most presenters are from the local area but a few are guests brought in from outside. If you want to be added to the email list and to receive the papers, please contact me at

Our next session is on February 29th, and will feature a paper by Coel Kirkby, a Canadian graduate student doing his doctorate at Cambridge. It is entitled "'Indian Enfranchisement' and the Imperial Origins of the Canadian Constitution."

Friday, February 17, 2012

Submissions sought for Peter Oliver Prize

Peter Oliver Prize in Canadian Legal History

The Osgoode Society for Canadian Legal History invites nominations for the Peter Oliver Prize in Canadian Legal History. The prize, named for Professor Peter Oliver, the Society's founding editor-in-chief,  is awarded annually for published work (journal article, book chapter, book) in Canadian legal history written by a student. Students in any discipline at any stage of their careers are eligible. The Society takes a broad view of legal history, one that includes work in socio-legal history, legal culture, etc., as well as work on the history of legal institutions, legal personnel, and substantive law.

Faculty members are encouraged to nominate student work of which they are aware, and the Society will also be pleased to accept self-nominations.  Those nominating their own work should send a copy of it to the Society. The deadline for nominations for the 2012 Prize, to be awarded for work published in 2011, is April 30, 2012.

Please send nominations to Professor Jim Phillips, Editor-in-Chief, Osgoode Society for Canadian Legal History, Osgoode Hall, 130 Queen Street West, Toronto ON M5H 2N6, or by email to

Applications sought for McMurtry Fellowship

R. Roy McMurtry Fellowship in Canadian Legal History
The R. Roy McMurtry Fellowship in Canadian Legal History was created on the occasion of the retirement as Chief Justice of Ontario of the Hon. R. Roy McMurtry.  It honours the contribution to Canadian legal history of Roy McMurtry, Attorney-General and Chief Justice of Ontario, founder of the Osgoode Society for Canadian Legal History and for many years (and currently) the Society's President. The fellowship was established by Chief Justice McMurtry's friends and colleagues, and endowed by private donations and the Law Foundation of Ontario.
The fellowship is to support graduate (preferably doctoral) students or those with a recently completed doctorate, to conduct research in Canadian legal history, for one year. Scholars working on any topic in the field of Canadian legal history are eligible. Applicants should be in a graduate programme at an Ontario University or, if they have a completed doctorate, be affiliated with an Ontario University.  The fellowship may be held concurrently with other awards for graduate study. Eligibility is not limited to history and law programmes; persons in cognate disciplines such as criminology or political science may apply, provided the subject of the research they will conduct as a McMurtry fellow in Canadian legal history. The selection committee may take financial need into consideration.
The fellowship will be awarded in June 2012, and will have a value of $16,000.  Applications will be assessed by a committee appointed by the Osgoode Society for Canadian Legal History and consisting of Society Directors and academics. Those interested should apply by sending:
A full curriculum vitae
A statement of the research, not exceeding 1,000 words, that they would conduct as a McMurtry fellow. The statement should clearly convey the nature of the project, the research to be carried out, and the relationship, if any, between the project and previous work done by the applicant.
The names and addresses (including email addresses) of two academic referees. Please do not ask your referees to write; the Society will contact them if necessary.
For persons not currently connected with an Ontario University, an indication of how and when they intend to obtain such a connection.
Please send applications to Marilyn Macfarlane, McMurtry Fellowship Selection Committee, Osgoode Society for Canadian Legal History, Osgoode Hall, 130 Queen Street West, Toronto, M5H 2N6. The deadline for applications is April 30, 2012. For more information contact

Monday, February 13, 2012

Updated: Harris on Condominiums and Property Law in Vancouver

Update: I have been informed that the link to Doug Harris's paper was broken. I have fixed it (I hope.) Thanks to Chris Jaglowitz for pointing this out.

Doug Harris of the Faculty of Law at UBC has posted "Condominium and the City: The Rise of Property in Vancouver"  on SSRN. The article will appear in volume 36 issue 3 of Law & Social Inquiry.

The abstract:

Condominium is a form of land ownership that combines private ownership of an individual unit in a multi-unit building with an undivided share of the common property in the building and a right to participate in the collective governance of the private and common property. Introduced by statute across North America in the 1960s, condominium facilitated the vertical subdivision of land and enabled a massive increase in the density of private interests. This article describes condominium and considers the justifications that were offered for this rearrangement of property. It then chronicles the introduction of condominium to the city of Vancouver and maps its spread across the city from 1970 to 2010. In doing so, the article reveals that condominium, a legal innovation without peer in its capacity to increase the density of private ownership in land, has provided the legal architecture of ownership for the remaking of Vancouver.

Mazzacano on Puritanism and Politices in Boston's General Court

Peter Mazzacano of Osgoode Hall Law School has posted "Puritanism, Godliness, and Political Development in Boston and the General Court (1630-1640)" on SSRN. The article also appears in The Journal Jurisprudence, vol. 12, 2011.


The goal of this article is to examine the degree to which Puritanism influenced early American political culture. That is, how did Puritan values and practices facilitate the development of an exceptional political culture during the formative years of Massachusetts Bay? Utilizing a case-study method of analysis, this article examines the political developments in the General Court and the town of Boston during the decade 1630 to 1640. The research methods used are primarily the writings of leading Puritans, and concomitant town, church, and colonial records. The main finding is that the Puritans paid little heed to notions of democracy, theocracy, oligarchy, or British political traditions; instead, Puritan institutions and practices were based on the primary Puritan ideal of godliness. However, the formative influence of the godly ideal inadvertently reinforced democratic and republican ideals. The conclusion is that the focus on godliness provides a comprehensive and multiple explanations for the course of political developments in early Massachusetts Bay.

Reid on Doctrine of Discovery

"The Doctrine of Discovery and Canadian Law" by Jennifer Reid appears in Canadian Journal of Native Studies, 2010, Vol. 30 Issue 2.

Here's the abstract (proposal):

This article will focus on a set of fifteenth-century assumptions regarding sovereignty known as the Doctrine of Discovery. The doctrine was the "legal" means by which Europeans claimed preemptive rights in the New World, and it underlies the relationship between Indigenous and non-Indigenous peoples to this day. This article will explore the Doctrine's development from its inception to its integration into Canadian law. By demonstrating continuity between fifteenth century papal bulls, the Royal Proclamation, the Constitution Act, 1982, and Supreme Court holdings, I will argue that Aboriginal title in Canada was—and continues to be—entrenched in the Doctrine of Discovery.

Phillips and Miller on Judicial Reform in Nova Scotia

“Too Many Courts and Too Much Law”: The Politics of Judicial Reform in Nova Scotia, 1830–1841" by Jim Phillips and Bradley Miller appears in  the current issue of the Law & History Review.

Here's the abstract:

The 1830s was Nova Scotia's “Age of Reform.” Although historians have documented the growing tensions between elected Assembly and appointed lieutenant governor and Council, the concomitant attacks on the established economic elite, and the rise of a distinct party in colonial politics, little attention has been paid to the role played by the colony's courts and judges in this crucial decade. This lacuna is surprising, because reformers were convinced that the judges of the Nova Scotia Supreme Court (NSSC) were bulwarks of the old order and barriers to progress, and as their movement gained influence in the 1830s it brought the judges and the court system to the fore. This period saw numerous proposals for reform to the colony's laws and legal system, some effected and others not. Here we examine those aspects of the reform platform that were most hotly contested precisely because they exemplified the ways in which controversies about the legal system both reflected and exacerbated broader political and social change. The most important issues were judicial fees and the role of the chief justice as head of the Tory-dominated lieutenant governor's Council. We also examine two other matters in which the judicial system was directly linked to reformers' general demands for a system of government more responsive to the needs of ordinary Nova Scotians: judicial salaries and the role of the lower civil courts

Wednesday, February 8, 2012

Congratulations (again) to Brad Miller..

...who has been appointed to a tenure track position at the UBC Department of History.
Hat tip to Jim Phillips for the news.

Tuesday, February 7, 2012

Dedek on Medieval Scholastic Jurisprudence

Recently posted on SSRN, "The Splendour of Form: Scholastic Jurisprudence and 'Irrational Formality'"  by Helge Dedek of McGill University Faculty of Law. The article will appear in the second issue of volume 5 of Law and Humanities.
Here's the abstract:

The Western legal tradition portrays itself as a tradition of rationality. Although this tradition has its roots in the academic treatment of law at the medieval university, the medieval juridical mannerisms seem to be anathema to the Weberian ‘formal rationality.’ Scholasticism has become the synecdoche for the problems we moderns have when trying to access medieval thought. Medieval Scholastic jurisprudence seems prima facie strangely formalistic, guided by ambitions that are incomprehensible to the ‘modern mind’. Yet medieval jurisprudence is not as remote from us as it might seem at first glance. This paper aims to demonstrate that what connects the medieval and the modern jurist are aspects of legal discourse that cannot be explained in ‘rational’ terms. To this end, the paper focuses on the ‘legal aesthetics’ of the Scholastic jurists, exemplified by an inquiry into the doctrine of ‘interesse’, one of the most controversial areas of the law of damages

ANZLHS Conference Call for Papers: "Receiving Laws/Giving Laws"

From Shaunnagh Dorsett, a call for papers for the 31st Annual Conference of the Australia New Zealand Law and History Society to be held at the University of Technology, Sydney (UTS), 10-12 December 2012 (update: website here.)No doubt Philip Girard will be providing some Canadian perspective in his keynote address; but I am sure he would like plenty of company from compatriots.

The conference theme is “Receiving Laws/Giving Laws”. It is orientated towards the movement, transmission and transformation of laws and their histories – across Empire, through time, in and between genres and disciplines. The receiving and giving of laws could be addressed in a broad range of ways. How do laws and histories translocate? By what means (doctrinal, processual, cultural) are laws transmitted and received in new places? What transformations happen as a result of this movement? Whose histories, cultures and laws appear and disappear through these transformations? What kinds of interventions can bring about ways of transforming, perceiving and transmitting the law and its histories/cultures?
The keynote speaker is Professor Philip Girard, University Research Professor and Professor of Law, History & Canadian Studies, Schulich School of Law, Dalhousie University. There will also be a plenary panel in which three scholars will address the theme of the conference, each through a different genre of legal history: Professor Anne Orford, Melbourne Law School; Dr Katherine Biber, School of Law, UTS; Dr Damen Ward, Crown Law Office, Wellington.

The organising committee would welcome interest from historians from any jurisdiction. The call for papers will be open until late June. Inquiries or paper proposals - including a title, brief abstract and brief biography - should be sent to

Monday, February 6, 2012

Ziff on Cave Wars on SSRN

Bruce Ziff of the U of A has posted a working paper on SSRN which looks fascinating (as we expect from Bruce Ziff. I wish I could hear him present on it. I bet he has great pictures.)
It's called "The Great Onyx Cave Cases--A Micro-History." Thanks to Eric Adams for the tip.

Here's the abstract:

Controversies surrounding property rights to the Great Onyx Cave in Kentucky have given rise to two legendary decisions with enduring legal importance. The first of these, Edwards v. Sims (1929), is a leading authority on the extent of ownership rights below the surface of land. The second, Edwards v. Lee's Administrator (1936), concerns the appropriate measure of damages for trespass. Stripped to essentials, the facts that led to these two important rulings are quite straightforward: E discovered a cave beneath his surface, which he developed into a thriving tourist attraction. However, it turns out that approximately one-third of the cave passes below, well below, the surface of land owned by L, who had no ready means of access to the cave. Should title to the cave as a whole belong to the party who owns the mouth and who has taken possession? If not, how might one assess damages for trespass where E has benefited financially by the acts of trespass, but L has no practical use for his portion of the cave?

Of course, life is rarely as simple as that suggested by these sparse facts, and if one delves into the background of these famous cases -- a story that has been neglected over the years -- additional insights emerge. As it turns out, this dispute is one episode in a tempestuous time, the so-called 'cave wars' period, in which confrontations and lawsuits over cave rights and tourism in the region were commonplace. Moreover, the fight over Great Onyx Cave arose amid a campaign to acquire the caves in the region for a national park. As the clouds of the Depression formed, the park project must have held out hope for the local landowners. In addition, one member of the Kentucky Court of Appeals, Marvel Mills Logan, played a significant and somewhat unconventional role in the Great Onyx Cave litigation and the events surrounding it. His place in the story is examined in detail.


Wednesday, February 1, 2012

Conference Programme available for Legal Histories of the British Empire Conference

To be held in Singapore this summer, with an impressive number of Canadians presenting.
The programme is not yet posted on theconference website, but will no doubt be soon. Anyone wanting an advanced copy should contact Jim Phillips at