Faculty directory

Courses

• The Criminal Law Process - 102
• The Private Law Process: Property - 108B
• The Law of Evidence - 309
• Indigenous Lands, Rights and Governments - 340
• Historical Foundations of Aboriginal Title and Government - 341
• Historical Foundations of the Common Law - 361

Publications

Publications: Legal History and Aboriginal Law

Books (edited collections):

1. Hamar Foster, John McLaren and Wes Pue, ed. The British Columbia Court of Appeal, 1910-2010, BC Studies No. 162 (Summer 2009).
2. Hamar Foster, Benjamin L. Berger and Andrew Buck, ed. The Grand Experiment: Law and Legal Culture in British Settler Societies (Vancouver: The Osgoode Society and UBC Press 2008)
3. Hamar Foster, Heather Raven and Jeremy Webber, ed. Let Right Be Done: Aboriginal Title, the Calder Case and the Future of Indigenous Rights (Vancouver: UBC Press 2007).
4. Hamar Foster and John McLaren, ed., Essays in the History of Canadian Law, Vol. VI: British Columbia and the Yukon (Toronto: University of Toronto Press and the Osgoode Society for Legal History 1995)
5. John McLaren, Hamar Foster, and Chet Orloff, ed. Law for the Elephant, Law for the Beaver: Essays in the Legal History of the North American West (Regina: Canadian Plains Research Centre and Pasadena: Ninth Judicial Circuit Historical Society 1992).

Articles and Chapters:

6. "Amos Russ," to be published in Vol. XVI of the Dictionary of Canadian Biography [this is an entry on Gedanst, the first Haida to convert to Christianity].
7. "Appeals and the British Columbia Court of Appeal" (2010), 68 the Advocate at 821-839.
8. "One Good Thing: Law, Elevator Etiquette and Aboriginal Rights Litigation in Canada" (2010), 37 The Advocates' Quarterly at 66-86.
9. "For the Better Administration of Justice: The Court of Appeal for British Columbia, 1910-2010" in The British Columbia Court of Appeal, 1910-2010, BC Studies No. 162 (2009), above at 5-24 (co-authored by John McLaren).
10. "If Your Life is a Leaf: Arthur Eugene O'Meara's Campaign for Aboriginal Justice," in Constance Backhouse and Wesley Pue, ed. The Promise and Perils of Law: Lawyers in Canadian History (Toronto: Irwin Press 2009) at 225-241.
11. "'We Want a Strong Promise': The Opposition to Indian Treaties in British Columbia, 1850-1990," 18 Native Studies Review, No.1 at 113-137 (2009).
12. "Does Law Matter? The New Colonial Legal History," introduction to Foster, Berger and Buck, ed. The Grand Experiment: Law and Legal Culture in British Settler Societies (2008), above at 1-12 (co-authored by Benjamin L. Berger and A.R. Buck).
13. "From Humble Prayers to Legal Demands: The Cowichan Petition of 1909 and the British Columbia Indian Land Question" in Foster, Berger and Buck, ed. The Grand Experiment: Law and Legal Culture in British Settler Societies (2008), above at 240-267 (co-authored by Benjamin L. Berger).
14. "We Are Not O'Meara's Children: Law, Lawyers and the First Campaign for Aboriginal Title in British Columbia, 1908-1928" in Foster, Raven and Webber, ed., Let Right Be Done: Aboriginal Title, the Calder Case and the Future of Indigenous Rights (2007), above at 61-84.
15. Commentary on Henry Reynolds, "Reviving Indigenous Sovereignty?" in (2006) 6 Macquarrie Law Journal 15-17 (Australia).
16. "Law and Necessity in Western Rupert's Land and Beyond, 1670-1870," in Louis A. Knafla and Jon Swainger, eds. Law and Societies in the Canadian Prairie West, 1670-1940 (Vancouver: UBC Press 2005) at 57-91.
17. "Trespassers on the Soil'": United States v. Tom and a New Perspective on the Short History of Treaty Making in Nineteenth Century British Columbia," 138/139 BC Studies (2003) at 51-84 (co-authored by Mr. Alan Grove). This essay has been re-printed in Alexandra Harmon, ed. The Power of Promises: Rethinking Indian Treaties in the Pacific Northwest (Seattle: University of Washington Press 2008) (U.S.).
18. "Litigation and the BC Treaty Process: Some Recent Cases in Historical Perspective," in British Columbia Treaty Commission, Speaking Truth to Power III (BCTC 2002).
19. "Law, History and Aboriginal Title: Calder v. Attorney General of British Columbia ," in Canada , Confederation to Present (Chinook Multimedia, Inc., 2001). [Available on CD and on the Internet.]
20. "Getting There," in British Columbia Treaty Commission/ Canada Law Commission, Speaking Truth to Power: A Treaty Forum (Canada 2001) at 165-180.
21. "A Romance of the Lost: Tom MacInnes' Role in the History of the B.C. Indian Land Question", in G.B. Baker and J. Phillips, eds., Essays in the History of Canadian Law, Vol. VIII: In Honour of D.C.B. Risk (Osgoode Society for Canadian Legal History and U of T Press, 1999) at 171-212.
22. "Canada : 'Indian Administration' from the Royal Proclamation of 1763 to Constitutionally Entrenched Aboriginal Rights", in Paul Havemann, ed. New Frontiers? First Nations' Rights in the Settler Dominions: Australia , Canada and New Zealand/Aotearoa 1975-1995 (Oxford U.P., 1999) at 351-377 (New Zealand).
23. "Fighting the King's War: Harris Smallfence, Verbal Treaty Promises and the Conscription of Indian Men, 1944" (1999), 33 UBC Law Review 53-74 (co-authored by Mr. R. Scott Sheffield).
24. "Honouring the Queen's Flag: A Legal and Historical Perspective on the Nisga'a Treaty," (1999), 120 BC Studies 11-35. [This essay was selected as one of the 40 "most influential and engaging" BC Studies essays to date, and was audio recorded to celebrate the 40th anniversary of BC Studies.]
25. "Aboriginal Title and the Provincial Obligation to Respect It: Is Delgamuukw v. British Columbia 'Invented' Law?" (1998), 56 the Advocate , 221-231.
26. "Indigenous Peoples and the Law: The Colonial Legacy in Australia , Canada , New Zealand and the United States ", in D. Johnston and G. Ferguson, eds. Asia Pacific Legal Development (Vancouver: UBC Press 1998) at 466-500.
27. "Robert Beaven," Dictionary of Canadian Biography , Vol. XIV (U. of Toronto Press 1998) 47-49 (co-authored by Prof. Keith Ralston).
28. "Gilbert Malcolm Sproat", Dictionary of Canadian Biography , Vol. XIV (U. of Toronto Press 1998) 962-964.
29. "Roadblocks and Legal History, Part II: Aboriginal Title and Section 91(24)," (1996), 54 the Advocate 531-546.
30. "Roadblocks and Legal History, Part I: Do Forgotten Cases Make Good Law?" (1996), 54 the Advocate 355-366.
31."British Columbia: Legal Institutions in the Far West, from Contact to 1871" (1996), 23 Manitoba Law Journal 293-340; also published in W. Pue and D. Guth, eds. Canada's Legal Inheritances (U. of Manitoba Press, 2001). This is a revised version of "English Law, British Columbia : Establishing Legal Institutions West of the Rockies ," C.L.H.P. Working Paper No. 92-3 ( U. of Manitoba ).
32. "Hard Choices and Sharp Edges: The Legal History of British Columbia and the Yukon ," Introduction to Hamar Foster and John McLaren, eds., Essays in the History of Canadian Law, Vol. VI: British Columbia and the Yukon (Toronto: University of Toronto Press and the Osgoode Society for Legal History 1995) at 3-27 (co-authored by John McLaren).
33. "Letting Go The Bone: The Idea of Indian Title in British Columbia , 1849-1927," in Hamar Foster and John McLaren, eds., Essays in the History of Canadian Law, Vol. VI: British Columbia and the Yukon (Toronto: University of Toronto Press and the Osgoode Society for Legal History 1995) 28-86.
34. "The Queen's Law is Better than Yours: International Homicide in Early British Columbia" in J. Phillips et al ., eds. Essays in the History of Canadian Law: Crime and Criminal Justice, Vol. V (Toronto: 1994) 41-111.
35. "Canadian Indians, Time and the Law" (1994), 7 Western Legal History , 69-112 (U.S.).
36. "George Anthony Walkem," Dictionary of Canadian Biography , Vol. XIII (U. of T. Press 1994) 1063-1066.
37. "Looking Behind the Masks: A Land Claims Discussion Paper for Researchers, Lawyers and their Employers" (1993), 27 University of British Columbia Law Review , 213-255 (co-authored by Mr. Alan Grove).
38. "Conflict Resolution During the Fur Trade in the Canadian North West, 1803-1859," a paper prepared for the 1993 Congress of the Jean Bodin Society for Comparative Institutional History, Copenhagen and published in (1993), 51 the Advocate , 871-77 and in (1994), 25 The Cambrian Law Review 127-135 (U.K.). This article has also been published in Vol. LXIII of Recueils De La Société Jean Bodin Pour L'Histoire Comparative Des Institutions (Bruxelles, 1996) at 207-215 (Belgium).
39. "Killing Mr. John: Law and Jurisdiction at Fort Stikine , 1842-46" in John McLaren, Hamar Foster, and Chet Orloff, eds. Law for the Elephant, Law for the Beaver: Essays in the Legal History of the North American West (Regina: Canadian Plains Research Centre and Pasadena: Ninth Judicial Circuit Historical Society 1992) at 147-193 (Canada and the U.S.).
40. "Law for the Elephant, Law for the Beaver: Tracking the Beasts," Introduction to John McLaren, Hamar Foster, and Chet Orloff, eds. Law for the Elephant, Law for the Beaver: Essays in the Legal History of the North American West (Regina: Canadian Plains Research Centre and Pasadena: Ninth Judicial Circuit Historical Society 1992) at 1-22 (co-authored by John McLaren).
41. "Forgotten Arguments: Indian Title and Sovereignty in Canada Jurisdiction Act Cases" (1992), 21 Manitoba Law Journal 343-389.
42. "It Goes Without Saying: Precedent and the Doctrine of Extinguishment by Implication in Delgamuukw v. The Queen " (1991), 49 the Advocate 341-357. Also published, in revised form, in Frank Cassidy, ed. Aboriginal Title in British Columbia : Delgamuukw v. The Queen (Institute for Research and Public Policy, 1992), 133-160.
43. "Mutiny on the Beaver: Law and Authority in the Fur Trade 'Navy' on the Northwest Coast , 1836-1839," (1991) 20 Manitoba Law Journal 15-45. Also published in Dale Gibson and W. Wesley Pue, eds., Glimpses of Canadian Legal History (Legal Research Institute 1991) at 15-46.
44. "Long Distance Justice: The Criminal Jurisdiction of Canadian Courts West of the Canadas , 1763-1859," (1990) 34 American Journal of Legal History 1-48 (U.S.).
45. "Sins Against the Great Spirit: The Law, the Hudson 's Bay Company, and the Mackenzie's River Murders, 1835-1839," (1989) 10 Criminal Justice History: An International Annual, 23-76.
46. "The Saanichton Bay Marina Case: Imperial Law, Colonial History, and Competing Theories of Aboriginal Title," (1989), 23 University of British Columbia Law Review, 629-650.
47. "Selected Provisions of the Indian Act Relating to Lands and Monies: A Historical Perspective," in The Report of the Commission of Inquiry Concerning Certain Matters Associated with the Westbank Indian Band ( Ottawa 1988), 447-501 (Appendix).
48. "How Not to Draft Legislation: Indian Land Claims, Government Intransigence, and How Premier Walkem Nearly Sold the Farm in 1874" (1988), 46 the Advocate, 411-420.
49. "Shooting the Elephant: Historians and the Problem of Frontier Lawlessness" in R. Eales, ed. The Political Context of Law: Essays in Legal History (Hambledon Press, 1987), 135-144 (U.K.).
50. "The Struggle for the Supreme Court: Law and Politics in British Columbia 1871-1885" in Knafla, Louis A., ed. Law and Justice in a New Land: Essays in Western Canadian Legal History (Carswell 1986), 167-213.
51. "Law Enforcement in Nineteenth Century British Columbia : A Brief and Comparative Overview" (1984), 63 BC Studies 3-28.
52. "The Kamloops Outlaws and Commissions of Assize in Nineteenth Century British Columbia" in D. Flaherty, ed., Essays in the History of Canadian Law, Vol. II ( Toronto 1983), 308-364.

 

Other Publications (Criminal Law, Evidence, etc.)

Articles and Chapters:

53. "Shocks and Balances: United States v. Burns, Fine-Tuning Canadian Extradition Law and the Future of the Death Penalty," (2004/05) 40 Gonzaga Law Review 293-327 (co-authored by Prof. R. Harvie, Saint Martin 's College, Washington) (U.S.).
54. "Let the Yanks Do It? The Charter, the Criminal Law and Evidence on a `Silver Platter'," (2001), 59 the Advocate 71-84. (Co-authored by Prof. R. Harvie, Saint Martin 's College, Washington).
55. "Schreiber v. Canada in the Supreme Court: Keeping the Charter at Home - But Not For Long" (1998) 26 Manitoba Law Journal 133-39. (Co-authored by Prof. R. Harvie, Saint Martin 's College, Washington).
56. "Unwarranted Behaviour: The Airbus Affair , United States Law and Searching Foreign Bank Accounts" (1998), 25 Manitoba Law Journal 421-447. (Co-authored by Prof. R. Harvie).
57. "When the Constable Blunders: The Law of Police Interrogation in Canada and the United States, a Comparison," (1996), 19 Seattle University Law Review 497-537. (Co-authored by Prof. R. Harvie) (U.S.).
58. "Whittled Away: The Converging Law of Police Interrogations in Canada and the United States," [1996] 39 Criminal Law Quarterly 112-122. (Co-authored by Prof. R. Harvie).
59. "Different Drummers, Different Drums: The Supreme Court of Canada, American Jurisprudence and the Continuing Revision of Criminal Law Under the Charter" (1992), 24 Ottawa Law Journal 39-115. (Co-authored by Prof. R. Harvie).
60. "Ties that Bind? The Supreme Court of Canada, American Jurisprudence and the Revision of Canadian Criminal Law Under the Charter" (1990), 28 Osgoode Hall Law Journal 729-788. (Co-authored by Prof. R. Harvie).
61. "Historical Pre-conditions for Judicial Review: Some Criminal (and other) Thoughts about Courts, Legislators and the Charter," (1989), 47 The Advocate , 695-709.
62. "Jurisdiction in Criminal Cases," Chap. 2 of Atrens, Burns and Taylor, eds. Criminal Procedure: Canadian Law and Practice ( Toronto 1982), plus 1986 supplement.
63. "Eyewitness Testimony: Line-Up Evidence," in J.P. Taylor, ed. Recent Developments in the Law of Evidence ( Vancouver 1980), at 31-38.
64. "Trial by Jury: The Thirteenth Century Crisis in Criminal Procedure" (1979), 13 UBC Law Review , 280-297.
65. "Alcohol, Automobiles, and the Search for Mens Rea : Is an Honest Mistake a Good Defence?" (1977), 8 Manitoba Law Journal , 521-527.
66. "Abuse of Rights - Civil Law - Legal Reasoning: Bradford v. Pickles Revisited" (1973), 8 UBC Law Review , 343-353.

 

Book Reviews, Selected Reports, etc.

67. "Re: You Say Goodbye, and I Say Hello? (with apologies to the Beatles)" (2005), 63 the Advocate 39-42.
68. Review of Bruce G. Miller, The Problem of Justice: Tradition and Law in the Coast Salish World (Lincoln: 2000), in (2001), 45 American Journal of Legal History 347-350 (U.S.). [Note: production problems at the AJLH have resulted in serious delays. Volume 45 is actually the volume for July 2001. This review was written and submitted in August of 2002, but did not appear until February of 2004.]
69. Review of Michiel Horn, Academic Freedom in Canada : A History ( Toronto 1999) in (2000), 58 the Advocate 110-113.
70. Review of F. Murray Greenwood and B. Wright, eds. Canadian State Trials: Law, Politics and Security Measures, 1608-1837 ( Toronto : 1996) in (1997), 55 the Advocate 446-49
71. Review of Antonia Mills, Eagle Down is Our Law: Witsuwit'en Law, Feasts, and Land Claims (Vancouver 1994), in (1996), 9 Western Legal History 252-55 (U.S.).
72. Review of Douglas Cole and Ira Chaikin, An Iron Hand Upon the People: The Law Against the Potlatch on the Northwest Coast (Vancouver 1990), in (1991-92) BC Studies at 218-224
73. Review of Terry Glavin, A Death Feast in Dimlahamid (Vancouver 1990), in (1991) 6 The Canadian Journal of Law and Society at 212-217
74. Review of Turner and Uhlemann, eds., A Legal Handbook for the Helping Professional , in (1991) 49 the Advocate at 955-956.
75. Review of Jack Woodward, Native Law (Carswell 1990), in (1991) 70 Canadian Bar Review at 198-200.
76. Review of the Hon. David Verchere, A Progression of Judges: A History of the Supreme Court of British Columbia (Vancouver 1988) in (1989), 82 BC Studies , 73-76.
77. Review of John D. Arnup, Middleton: The Beloved Judge ( Toronto 1988), in (1989) 12 C.L.I.C. Legal Materials Letter , 1-2.
78. Review of Larry A. Bakken, Justice in the Wilderness: Frontier Courts in Canada and the U.S. 1670-1870 ( Colorado 1986) in C.L.I.C. Legal Materials Letter (March/April 1988).
79. Review of William Twining, Theories of Evidence: Bentham and Wigmore (Stanford 1985), in (1987) 66 Canadian Bar Review , at 203-208.
80. Review of Vaughan and Snell, The Supreme Court of Canada ( Toronto 1985), Canadian Historical Review (1986), 422-24.
81. Review of Lord Denning, Landmarks in the Law ( London , 1984), in (1986) 20 UBC Law Review , No. 2 at 331-337.
82. Review of Barton and Peel, Criminal Procedure in Practice: A Manual for the Defence of Cases in Provincial Court , in (1980), 58 Canadian Bar Review at 795-797.
83. Review of Snow's Criminal Code , in Canadian Journal of Criminology (1979), Vol. 21, No. 3, at 346-348.
84. Review of Renisa Mawani, Colonial Proximities: Crossracial Encounters and Juridical Truths in British Columbia, 1871-1921 (UBC Press 2009) in BC Studies, Vol. 172 (online at http://www.bcstudies.com/reviews.php?id=838653, soon to be published).

 

* * * * *

Though the Heavens Fall, a documentary video on the BC Court of Appeal produced by the Justice Education Society and the Knowledge Network, 2009 (Advisory Committee member, on camera interviewee)
"The Nisga'a Agreement in Principle," Vol.15, Part 2 of the Torch (Spring 1996)
Hearing the Native Voice, a three part video presentation on aboriginal fishing rights, land and governance issues, Shaw Cable Community Channel, 1995 (committee member and on camera interviewer)
"Why is There a Treaty Process in B.C.?," in Federal Treaty News , Vol. 3, No. 2, at 8-9
Essay on "British Law" in Legal Perspectives , the Legal Services School Program Newsletter (1991), at 47.
"The Queen v. Baptiste Cadien ," in A Case for Canada (Centre for Education, Law and Society, 1991), at 33-66, with Teacher's Guide (7-14).
Common Law for Common Folk (Legal Services Commission, Vancouver 1977). This booklet has been updated for use in Nova Scotia under the title Trial and Error: Our Legal History (1985) and a second, revised edition under the original title has been published in Saskatchewan (1986).

 

* * * * *

Tsilhqot'in Law, a report prepared for the plaintiffs in Tsilhqot'in nation v. British Columbia (2005).
Submission to the House of Commons Standing Committee on Aboriginal Affairs on the Nisga'a Treaty, November 18, 1999
"Delgamuukw: A Layperson's Guide," in the 1998 Annual Report of the BC Treaty Commission , at 32-36 (this was a group effort, involving Chief Commissioner Alec Robertson, QC, Prof. Patrick Macklem of the Faculty of Law at the University of Toronto, and Treaty Commission staff members as well).
"Why There is a Treaty Process in British Columbia: A Legal Perspective," in the 1995-96 Annual Report of the BC Treaty Commission , at 14-18 (another group effort, involving many of the same people as in the 1998 Report, immediately above).
"Submission to the Select Standing Committee of the Legislature on Aboriginal Affairs" (BC Legislative Assembly) December 1996.
"The Charter and Treaty Negotiations," a policy paper for the Ministry of Aboriginal Affairs (British Columbia ), 1993
"Some Issues and Research for the Royal Commission Aboriginal Peoples," a report for the Royal Commission on Aboriginal Peoples, 1992 (published internally).
"Prior Consistent Statements" in C.L.E. Society program materials, March 1987.
"Recent Developments in Criminal Evidence" in C.L.E. program materials, March 1986.
"The Charter and the Criminal Process" in Proceedings of the Saskatchewan Branch of the Canadian Bar Association, Winter 1984.

 

Theses/Dissertations

"Measures Essentially Unjust: English `Law' and Native `Custom' in New Zealand , Vancouver's Island and British Columbia , 1769-1871" (University of Auckland , M.Jur., 1989) (With Distinction).
"Two Faces of Radical Criticism: A Study of the Theoretical Radicalism of Herbert Marcuse and Ayn Rand" (University of Sussex, M.A., 1971).

 

Research