John Borrows and Val Napoleon: The role of the sacred in Indigenous law and reconciliation

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How Canadian bureaucrats make state territory in the name of ‘restoring’ Indigenous rights

I’m quite happy that some recent work of mine is now out in the Annals of the American Association of Geographers.[very happy to send FREE copies to anybody by email or by post if a hardcopy is preferred].

The paper looks at how bureaucrats in Canada used the development of new legislation regarding private property on lands reserved for First Nations to convert Indigenous claims to territory into spaces akin to municipalities. I’ve put the abstract below, and aim to put out a short piece or two to summarize soon; one aspect of the work is its basis in bureaucratic practices…many of which are about addressing critiques within and beyond the government. So I’ll be keen to see what (if any) responses it generates.

Bureaucratic Territory: First Nations, Private Property, and “Turn-Key” Colonialism in Canada

Abstract:

Since 2006, successive Canadian governments have worked to create private property regimes on lands reserved for First Nations. This article examines how the state framed the theory and history of Aboriginal property rights to achieve this goal. It then shows how, under the pretense of restoration, bureaucrats developed legislation that would create novel political spaces where, once converted to private property, reserved lands would function as a new kind of federal municipality in Canada. These changes took place in two ways: First, bureaucrats situated Aboriginal property within the state apparatus and reconfigured Indigenous territorial rights into a series of “regulatory gaps” regarding voting thresholds, certainty of title, and the historical misrepresentation of First Nations economies. Second, the government crafted legislation under what is known as the First Nations Property Ownership Initiative that, by closing regulatory gaps, would produce private property regimes analogous to municipal arrangements elsewhere in Canada. These bureaucratic practices realigned internal state mechanisms to produce novel external boundaries among the state, Indigenous lands, and the economy. By tracking how bureaucratic practices adapted to Indigenous refusals of state agendas, the article shows how the bureaucratic production of territory gave form to a new iteration of settler-colonialism in Canada.

 

Newly appointed: next disappointment? Canada names new environment minister

Yesterday the Canadian Government announced a new cabinet minister for the environment. The previous minister, Peter Kent, was recently eviscerated as quite possible Canada’s worst environment minister ever.

He certainly has presided over a precipitous fall. But the trend towards poor environmental regulations did not start with him. In fact, a 2010 article in Ecology Law Quarterly asks: What ever happened to Canadian environmental law? (PDF).

So, all this to say, the new minister is not inheriting a particularly envious portfolio.

The new minister is Leonna Aglukkaq the former minister of health and also the current chair of the Arctic  Council. When the latter post was assigned to her, researcher’s at McGill wrote an open letter stressing the need for an emphasis on food and housing security. Unfortunately, the tone so far set is one of development as a priority and everything else as a trickle-down effect.

A rising tide floats all boats, so they say. But it can also flood a lot of people out.

Anyhow, this emphasis on the North is all being set in a broader context of Arctic security, First Nations rights and a host of geopolitical issues regarding climate, sovereignty and the like. With that said, there is an interesting new article freely available on the the “New North” – a phrase that recurs often but which is laden with a set of assumptions about for whom the area should be governed and how. You can download it here (pdf).

And here is the abstract:

References to a “New North” have snowballed across popular media in the past 10 years. By invoking the phrase, scientists, policy analysts, journalists and others draw attention to the collision of global warming and global investment in the Arctic today and project a variety of futures for the region and the planet. While changes are apparent, the trope of a “New North” is not new. Discourses that appraised unfamiliar situations at the top of the world have recurred throughout the twentieth century. They have also accompanied attempts to cajole, conquer, civilize, consume, conserve and capitalize upon the far north. This article examines these politics of the “New North” by critically reading “New North” texts from the North American Arctic between 1910 and 2010. In each case, appeals to novelty drew from evaluations of the historical record and assessments of the Arctic’s shifting position in global affairs. “New North” authors pinpointed the ways science, state power, capital and technology trans- formed northern landscapes at different moments in time. They also licensed political and corporate influence in the region by delimiting the colonial legacies already apparent there. Given these tendencies, scholars need to approach the most recent iteration of the “New North” carefully without concealing or repeating the most troubling aspects of the Arctic’s past.

Legal symposium on hydraulic fracturing and water (presentations + videos)

If the links for this don’t work for some reason you can go directly to the original site here. If you are interested in water, Joseph Dellapenna’s talk in session two  may be of particular relevance.

Fracking-idaho-law-review-symposium

The 2013 Idaho Law Review Symposium will bring together an interdisciplinary panel of legal, scientific, and business experts to discuss issues related to the hydraulic fracturing. Topics will include: (1) the science and technology of hydraulic fracturing; (2) the regulation of hydraulic fracturing’s environmental effects; (3) the role of state and local governments in regulating hydraulic fracturing; (4) current legal hot topics in the field, such as the role of trespass and trade secrets; and (5) the role of hydraulic fracturing in a clean energy future for the country.

The 2013 Idaho Law Review Symposium will continue the tradition of bringing together a select group of scholars and professionals for an informed interdisciplinary discussion centered on a topic of growing national importance. By exposing members of the academic, business, technological, and legal communities to diverse viewpoints and multifaceted experiences, our goal is to provide a forum for open discourse which will provide participants with valuable information applicable to their own business and legal situations.

CLE Credits

The video of the Symposium is now available for free access below.

PowerPoint Slides and Law Review Articles

The PowerPoint slides and law review articles of the presenters will be posted as soon as they are available. The slides and law review articles constitute the CLE presentation materials for the Symposium.

Symposium Schedule of Events

Science and Technology of Hydraulic Fracturing (8:45-9:45) – (video)
Moderator: Anastasia Telesetsky (Idaho)
John Imse (NORWEST) – Presentation (pdf)
Virginia Gillerman (Idaho Geological Survey) – Presentation (pdf)

Regulation of Hydraulic Fracturing’s Environmental Effects (10:00 – 12:35)
Water. (10:00 – 11:00) – (video)
Moderator: Barbara Cosens (Idaho)
Joseph Dellapenna (Villanova) – Primer on Groundwater Law (pdf) – Presentation (pdf)
Robin Kundis Craig (Utah) – Hydraulic Fracturing (Fracking), Federalism, and the Water-Energy Nexus (pdf)

Air & Land. (11:00 – 12:20) – (video)
Moderator: Jerrold Long (Idaho)
Jim Wedeking (Sidley Austin LLP) – Up in the Air (pdf)
Carlos Romo (Baker Botts LLP) – Rethinking the ESAs Orderly Progression (pdf)- Presentation (pdf)
Elizabeth Burleson (Pace)

State & Local Government Regulation Hydraulic Fracturing (1:50 – 2:50) – (video)
Moderator: Stephen R. Miller (Idaho)
Uma Outka (Kansas) – Presentation (pdf)
Michael Christian (Marcus Christian Hardee & Davies LLP) – Summary of Revisions to Idahos Oil and Gas Conservation Act and Rules (pdf)

Two Hydraulic Fracturing Hot Topics: Trespass & Trade Secrets (2:50 – 3:50) – (video)
Moderator: TBA
Chris Kulander (Texas Tech) – Common Law Aspects of Shale Oil and Gas Development (pdf) – Presentation (pdf)
Keith Hall (Louisiana State) – Hydraulic Fracturing: Trade Secrets (pdf) – Presentation (pdf)

Does Hydraulic Fracturing Have a Role in a Clean Energy Future? (4:00 – 5:00) – (video)
Moderator: Dale D. Goble (Idaho)
Joshua Fershee (West Virginia)
Patrick Parenteau (Vermont) – A Bridge Too Far (pdf) – Presentation (pdf)

Stationarity, ecology and law: which decisions are final?

There is a very interesting post over at Law 2050 on stationarity and climate adaptation in law. And it makes reference to a new 2013 paper in the Duke Law Journal.

The idea of stationarity is well-known in hydrology as the assumption that natural variability fluctuates within an overall envelope of stability. So we might have more or less precipitation or water availability in a given year but outer limits of variability exist such that, year over year, things are relatively stable. This is what allows planners to build for 50- or 100-year floods. But as many people will notice, we seem to have 50- or 100- year floods more often than fifty or one hundred years. And this has led to a sustained questioning of the assumed stability of things and to a 2008 by a paper in Science claiming that stationarity is dead. The argument is that human forcing on climate and hydrological systems has taken natural variation out of the envelope – there are now no clear limits to variability.

I used the rejection of stationarity in a recent paper to show how we need to rethink policy concepts in the Anthropocene. For instance, the idea of “renewable water” is common in policy discourse, but it relies on the idea that there are annual stocks and seasonal flows of water and this assumes that water variability is relatively stable over time. Take away that assumption of stability and the idea that water is “renewable” is not so straightforward (if it remains workable at all).

If we consider the idea of stationarity as it pertains to law, it raises anew a question asked in the early 1990s by legal scholar Dan Tarlock in his essay “The nonequilibrium paradigm in ecology and the partial unraveling of environmental law.” In that paper, Tarlock argues that the idea of a stable, natural world is what links science to law in a relevant way. This is because in a stable world the outer limits of things are more or less fixed. This is helpful in law because we need to be able to bind a case somehow in order to reach a final judgment – binding a case in certain ways is what allows certain things to be evidence and other things not to be. Similarly, the idea of outer limits in early ecosystem science suggested that what we need to do is develop environmental laws that would keep us from pushing things off balance. Think of early ideas of a “maximum sustainable yield” in forestry. There the idea was that we can keep taking a certain harvest because the forest as a whole was stable over time – things were in equilibrium.

It is now common, however, to think of complex systems as being at a distance from equilibrium. Think of your body. It hums along at 37 degrees C and works hard to keep it that way regardless of the temperature in your room, building or the environment. So your body is at a distance from equilibrium. If it was not, you would be ill; possibly dead. Similarly, the nonequilibrium paradigm in ecology suggests that broader systems, even the earth itself, work not by seeking stability or equilibrium, but by not doing so. So too in the forestry example. It is not the case that we can develop maximum sustainable yield models that assume the forest itself is always oriented towards stability. Forests are changing and adapting, as Nancy Langston’s classic book on the topic makes clear (Forest Dreams, Forest Nightmares).

The idea of nonequilibrium systems troubles the fit of ecological science and the law. In brief, the law will need to catch up to what we are learning about complex systems and to formulate other ways of reaching decisions that do not presume that things will remain relatively stable over time. The paper out in the Duke Law Review is really a nice contribution on how we might begin to think of the fit between environmental law and complex systems without the assumption of stationarity and, in addition, how we might use what we have learned from non-stationary systems to adapt to surprises both in ecological systems and in social systems, like the law itself.