Context on Landscapes | An Open Legal Coursebook

Aboriginal Title at the End of the 19th Century

Mon, 01 Jan 0001 00:00:00 +0000

At this point, you have read three different judgements in the St. Catherine’s Milling case: the judgement at trial by Chancellor Boyd, Justice Strong’s dissent at the Supreme Court of Canada, and Lord Watson’s final decision for the Privy Council. As you try to make sense of the different interpretations and rationales offered by the judges with respect to common law Aboriginal title, consider their different answers to the following questions:

African Nova Scotian Settlement

Mon, 01 Jan 0001 00:00:00 +0000

Although African Nova Scotians have lived in Nova Scotia since 17th century (many of them enslaved by British settlers), the major waves of African Nova Scotian migration occured in the 18th and 19th centuries. First the Black Loyalists, who sided with Britain during the American Revolutionary War in the 1780s; then the Jamaican Maroons in 1796, formerly-enslaved Africans deported to Nova Scotia after they fought for their freedom in Jamaica; and finally the Black Refugees, who were incited by British offers of freedom and land during the War of 1812.

Anishinabek Law and Terra Nullius

Mon, 01 Jan 0001 00:00:00 +0000

A McNeil points out in his historical study of the St. Catherine’s Milling case, one of the most glaring aspects at every level of court is the lack of reliance on any evidence from Indigenous peoples regarding their interpretation of Indigenous land rights before and after Treaty 3 was signed.

This absence was not merely from lack of historical or contemporary evidence. McNeil cites the following quote attributed to Chief Ma-we-do-pe-nais on the third day of negotiations around Treaty 3, included in Alexander Morris’ book on the Numbered Treaties: ¹

Holmes' Modernism in Practice

Mon, 01 Jan 0001 00:00:00 +0000

We now want to see how Holmes’ ideas about the modern style play out in a case about de facto expropriation.

After he wrote The Path of Law, Holmes became a leading member of the United States Supreme Court. In 1922, he penned the majority decision in one of the first major U.S. cases about regulatory takings, Pennsylvania Coal Co. v Mahon.

Why we’re reading it: Mahon is an early example of two judges—Holmes for the majority, and Brandeis in dissent—embracing the modern style, despite their disagreement on the outcome of the case.

Nuisance Law in an Industrializing Canada

Mon, 01 Jan 0001 00:00:00 +0000

Canada Paper Company, Windsor Mills, QC, 1909. Source: McCord Museum, Montreal.

Widespread industrialization came somewhat late in Canada compared to England and the United States, where nuisance law was addressed earlier by the courts as a potential impediment to economic “progress”. As Jennifer Nedelsky explains:¹

By the late nineteenth century, industrialization and urbanization were changing the shape of Canadian society: between 1880 and 1920 the population doubled from 3,689,257 to 8,788,483; 74.35 per cent of the population were classified as rural by the census of Canada in 1881; by 1921 the percentage had decreased to 50.48. Capital investment in manufactures increased from $165,302,632 in 1880 to $2,923,667,011 in 1920 and the gross value of all manufactured products from $469,847,886 in 1880 to $3,706,544,997 in 1920. Manufacturing, once diffused, was concentrating in industrial towns. Factories increasingly replaced small workshops, and steam-powered engines brought noise as well as productivity. As the nuisances of industrialization increased, so did the costs of eliminating them. Manufacturing establishments, for example, were becoming sufficiently large and important to local economies that ordering them to take their nuisances elsewhere would have had serious consequences.

Reading Harrison

Mon, 01 Jan 0001 00:00:00 +0000

Reading Harrison #

By Elyse Loewen, CC BY NC SA 4.0

The first case we’ll read in this course–the Supreme Court of Canada’s decision in Harrison v Carswell–is about a labour dispute at the Polo Park shopping mall in Winnipeg in the mid-1970s. That setting may not strike you as obviously important or exciting, but Harrison is arguably one of the Supreme Court’s most important decisions for what it reveals about the central problems and debates in property law, and–more important still–for what it shows us about how judges and lawyers engage in those debates using the patterns and practices of common law legal argument.

The British Settlement of Halifax (1749)

Mon, 01 Jan 0001 00:00:00 +0000

Halifax, 1749.

Halifax was settled by the British in Mi’kma’ki without lawful authority or consent from the Mi’kmaq, on land the Mi’kmaq call K’jipuktuk. Like other places in Canada, Halifax’s colonial origins are rooted in the violent displacement and dispossession of Indigenous peoples. This legacy forms a central piece of the legal context for the city today.¹

Britain’s settlement of Halifax in 1749 was interposed between and closely linked with the Peace and Friendship Treaties signed by the British and Mi’kmaq in 1725 and then in 1752 and 1760-61. As noted above, interpreting the terms of these treaties is a complicated exercise, but it is unambiguous that, as nation-to-nation agreements, they are based on the ideas of building ongoing relationships and of reciprocity. Just as Halifax was settled in apparent breach of the 1725 treaty, the 1752 treaty and subsequent treaties might be seen as a direct response and attempt to repair the relationship between the Mi’kmaq and the British in the aftermath.