Faculty Publications (Law)

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Now showing 1 - 20 of 199
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    Implementing Regional Sustainability Strategies
    (Environmental Law Centre, 2012) Curran, Deborah
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    Relational legal pluralism and Indigenous legal orders in Canada
    (Global Constitutionalism, 2022) McKerracher, Kelty
    The survival and resurgence of Indigenous legal orders and constitutional traditions in Canada, as elsewhere, disrupt the normative hegemony of the liberal state and articulate a constitutionalism that accounts for a plurality of laws. How can state and non-state legal orders interact across vastly different normative worlds? How can their interaction address the colonial power imbalance and what role should recognition play in this relationship? This article draws on the work of Ralf Michaels on relational legal pluralism and Aaron Mills on Anishinaabe constitutionalism to explore how a legally plural society must embrace Michaels’ challenge of constitutive external recognition: the idea that legal orders mutually constitute each other through recognition without interfering with each other’s factual status as law. External recognition is consistent with strong legal pluralism and is distinct from recognition within the multicultural liberal state, a form of weak legal pluralism and continued colonialism. Mills’ discussion of treaty, rather than contract, as a foundation for shared political community assists in imagining a constitutionalism with/in Canada in which distinct legal orders can mutually constitute each other without domination. Linkage norms may help to establish reciprocal relations among state law and Indigenous legal orders, and the enactment of such ‘tertiary rules of recognition’ from within Indigenous legal orders may itself shift the balance of power.
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    Water Sustainability Plans: Potential, Options, and Essential Content
    (POLIS Project on Ecological Governance & Environmental Law Centre, 2019) Curran, Deborah; Brandes, Oliver M.
    This Innovation Brief investigates the possibilities associated with Water Sustainability Plans enabled by British Columbia’s new Water Sustainability Act, including enhancing adaptive water management, improving water sustainability, and building new innovative governance relationships. It was co-produced by the University of Victoria’s POLIS Water Sustainability Project and Environmental Law Centre.
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    When the Water Dries Up: Lessons from the Failure of Water Entitlements in Canada, the U.S. and Australia
    (POLIS Water Project, 2012) Curran, Deborah; Brandes, Oliver M.
    In June 2012, the WSP partnered with the University of Victoria’s Faculty of Law and Environmental Law Centre to host a two-day workshop on water entitlements. With British Columbia’s Water Act modernization process underway, the main purpose of the workshop was to disseminate knowledge about legal entitlements in the province, and take lessons from other jurisdictions, including Australia and the United States.
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    Protecting Fish in British Columbia
    (Environmental Law Centre, 2012) Curran, Deborah
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    Modernizing the 100-Year-Old Water Act
    (Environmental Law Centre, 2012) Cameron, Jennifer; Curran, Deborah
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    Indigenous Governance & Mining
    (Mining Law Reform Network & Environmental Law Centre, 2014-05) Curran, Deborah
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    British Columbia’s New Water Sustainability Act – Waiting for the Details
    (Environmental Law Centre, 2014) Curran, Deborah
    The British Columbia Legislature gave third and final reading, without any amendments, to Bill 18 – 2014, BC’s new Water Sustainability Act (“the Act”), on April 29 2014. This Bill is the long awaited overhaul of the water management and allocation regime in BC. After a four-year process involving a discussion paper, a policy proposal, consultation with stakeholders, and a proposed legislative framework, there are only a few surprises and disappointments. This summary provides a short overview with a focus on the pro-environment provisions, a strong statement about no compensation for changing existing water rights, governance approaches, continued reliance on provincial administration and thus resources, and no recognition of aboriginal water rights. It is a summary provided for information only and not a comprehensive analysis of the impact of the bill and changes to the existing Water Act, R.S.B.C. 1996, c. 483.
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    Indigenous Influence and Engagement in Mining Permitting in British Columbia, Canada: Lessons for Sweden and Norway?
    (Environmental Management, 2021) Allard, Christina; Curran, Deborah
    Mine developments in Indigenous territories risk disrupting Indigenous cultures and their economies, including spiraling already high levels of conflict. This is the situation in Canada, Sweden, and Norway, as elsewhere, and is fostered by current state legal framework that reflect historical trajectories, although circumstances are gradually changing. Promising institutional changes have taken place in British Columbia (BC), Canada, with respect to new legislative reforms. Notably, new legislation from 2019 intends to implement the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) in the province, by promoting consent-based and collaborative decision- making mechanisms. New environmental assessment legislation is another example; this legislation includes early engagement, collaborative decision-making, and Indigenous-led assessments. The article’s aim is, first, to analyze how Indigenous communities can influence and engage in the mining permitting system of BC, and, secondly, to highlight the positive features of the BC system using a comparative lens to identify opportunities for Sweden and Norway regarding mining permitting and Indigenous rights. Applying a legal-scientific and comparative analysis, the article analyzes traditional legal sources. The article concludes that the strong points that the BC regime could offer the two Nordic countries are: the concept of reconciliation, incorporation of UNDRIP, the spectrum of consultation and engagement approaches, and the structure of environmental assessments. All three jurisdictions, however, struggle with balancing mine developments and securing Indigenous authority and influence over land uses in their traditional territories.
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    John Borrows' Freedom and Indigenous Constitutionalism: Critical Engagements
    (Lakehead Law Journal, 2019) Kodar, Freya; Webber, Jeremy; Cochran, Patricia; Eisenberg, Avigail; Kiiwetinepinesiik Stark, Heidi; Borrows, John
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    Wapekeka's COVID-19 response: A local response to a global pandemic
    (International Journal of Environmental Research and Public Health, 2022) Loukes, Keira A.; Anderson, Stan; Beardy, Jonas; Rondeau, Mayhève Clara; Robidoux, Michael A.
    Two years after the onset of the COVID-19 pandemic, many nations and communities continue to grapple with waves of infection and social fallout from pandemic fatigue and frustration. While we are still years away from realizing the full impacts of COVID-19, reflecting on our collective responses has offered some insights into the impact that various public health policies and decisions had on nations’ abilities to weather the multifaceted impacts of the pandemic. Widely believed to have the potential to be devastated by COVID-19, many Indigenous communities in Canada were extremely successful in managing outbreaks. This paper outlines one such example, Wapekeka First Nation, and the community’s formidable response to the pandemic with a specific focus on food mobilization efforts. Built on over a decade of community-based participatory action research and informed by six interviews with key pandemic leaders in the community, this paper, co-led by two community hunters and band council members, emphasizes the various decisions and initiatives that led to Wapekeka’s successful pandemic response. Proactive leadership, along with strong traditional harvesting and processing efforts, helped to take care of the community while they remained strictly isolated from virus exposure.
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    Global Corruption: Its Regulation under International Conventions, US, UK, and Canadian Law and Practice
    (2022-02-24) Ferguson, Gerry
    This book has been specifically created to make it easier for professors to offer a law school course on global corruption. It is also designed as a resource tool for all persons working in the anti-corruption field. The book is issued under a creative commons license and can be used for free in whole or in part for non-commercial purposes. The first chapter sets out the general context of global corruption: its nature and extent, and some views on its historical, social, economic and political dimensions. Each subsequent chapter sets out international standards and requirements in respect to combatting corruption – mainly in the UN Convention Against Corruption (UNCAC) and the OECD Bribery of Foreign Officials Convention (OECD Convention). The laws of the United States and United Kingdom are then set out as examples of how those Convention standards and requirements are met in two influential jurisdictions. Finally, the law of Canada is set out. Thus, a professor from Africa, Australia, New Zealand or English speaking countries in Asia and Europe has a nearly complete coursebook – for example, that professor can delete the Canadian sections of this book and insert the law and practices of his or her home country in their place. While primarily directed to a law school course on global corruption, this book will be of interest and use to professors teaching courses on corruption from other academic disciplines and to lawyers and other anti-corruption practitioners.
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    Réseaux de solidarité et syndicalisme: les travailleurs informels se débrouillent seuls en Inde
    (Revue de droit comparé du travail et de la sécurité sociale, 2014) Routh, Supriya
    With the help of a case study of a trade union initiative of informal workers in Kolkata, India, I argue that if informal workers in developing countries have to ameliorate their working conditions and living standards, they cannot adhere to the traditional organizing principles of a trade union. They need to form a larger aggregation of workers integrating many other institutions in order to enhance their bargaining power.
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    The situation in south-east Turkey: Is it an armed conflict for the purpose of international humanitarian law?
    (Kurdish Human Rights Project, 2007-12-12)
    This article aims to start an academic debate on the question of the insurgency in south-east Turkey and whether the clashes between the Turkish security forces and the Kurdistan Workers’ Party (PKK) can be classified as an armed conflict. It looks at the roles of international, regional and domestic institutions such as the United Nations, the European Union and the Turkish Government in resolving the issues in the region. Against this backdrop, it considers the international law implications of past and future actions and the applicability of international humanitarian law in defining the situation in south-east Turkey as an armed conflict using the Geneva Conventions of 1949 and international customary law. This article does not attempt to find a solution to the conflict rather it suggests ways to move the debate forward.
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    Low Yield Tactical Nuclear Weapons and the Rule of Distinction
    (Flinders University, 2013) Breau, Susan
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    Treaties in History and Law
    (UBC Law Review Society, 2014-10) Promislow, Janna
    Negotiated solutions – and in particular, treaties – have long been touted by scholars, policy-makers and political leaders as the best way to resolve outstanding issues between the Crown and aboriginal peoples and to move towards post-colonial relationships. Canadian treaty jurisprudence, however, does not adequately support these ambitions. Part of the problem lies in the historical narrative of treaties that emerges from the law. This paper explores the relationship between the disciplines of law and history in relation to Canadian treaties and treaty jurisprudence, including indigenous approaches within both fields. It aims to identify points of tension between the disciplines to highlight how treaty narratives are differently constructed – one emphasizing tentative and evolving working relationships (history) and one emphasizing historical completion and resolutions (law). This exploration underpins an argument that to serve the post-colonial “promise” of treaties, treaty jurisprudence must be more coherent with historicist narratives and provide remedies that support the work-in-progress nature of treaty relationships.
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    Recasting Our Wild Neighbours: Contesting Legal Otherness in Urban Human-Animal Conflicts
    (UBC Law Review Society, 2016-01) Deckha, Maneesha; Pritchard, Erin
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    Deference with a Difference: Dunsmuir and Aboriginal Rights
    (Carswell, 2018-11-13) Promislow, Janna
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    Claire L’Heureux-Dubé: A Life, Constance Backhouse (Vancouver: Ubc Press for The Osgoode Society For Canadian Legal History, 2017)
    (Alberta Law Review Society, 2018-10-09) Adjin-Tettey, Elizabeth; Kodar, Freya; Calder, Gillian; Cochran, Patricia; Deckha, Maneesha; Parmar, Pooja; Lessard, Hester; Plyley, Kate; Zion, Mark
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    The Save Movement and Farmed Animal Suffering: The Advocacy Benefits of Bearing Witness as a Template for Law
    (Faculty of Law of Thompson Rivers University, 2019) Deckha, Maneesha
    This paper critically analyzes the practices and legal regulation of the growing global phenomenon of the Save Movement, a (human) social movement directed at bearing witness to and raising awareness of the suffering of animals brutalized in intensive farming. Save activists typically hold vigils as animals are transported from the warehouses in which they were raised to their deaths in a slaughterhouse. Through the lens of feminist relational theory and critical animal legal studies, the paper considers the benefits of the Save Movement for farmed animals as well as the capacity of the law to participate in the act of bearing witness to farmed animal suffering that the movement advocates. I argue that bearing witness is not only a productive activity for animal advocates to engage in, but also serves as a model for how the law can respond to animals. Put differently, I argue that the law should strive to bear witness to animal suffering, and that this subversive and partly socially subjectifying move for animals can occur even in the present anthropocentric legal culture where animals are legal property and clearly non-subjects.
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