Doctor of Philosophy in Law (PhD)
Mortgages, Markets and a Big Mess: ‘Behind-the-Scenes’ Finance and Canadian Housing
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This dissertation analyzes the ways in which internal, national, and international borders are embedded, constructed, and reinforced in the legal frameworks, enforcement patterns, and discursive practices on the Korean peninsula and beyond. Through a series of focused case studies on particular border sites, this dissertation reveals the ways in which law, as material reality, ideology, metaphor, and technology, enables and disables the movement of persons, things, and symbols across borders. The case studies begin with those borders constructed within and between two Koreas and then move outward to those that limit the movement of people beyond the Korean peninsula. The first case study analyzes North Korea’s efforts to regulate internal migrations through systems of residence registration, labor allocation, and travel certificates as part of its centrally planned economy. The dissertation then turns to the attempt to relocate a capital city in South Korea and the ways in which laws and practices, including written and customary constitutions, act as gatekeepers in Pyongyang and Seoul. The following chapter analyses the gendered construction of the “Socialist Big Family” in North Korea, paying particular attention to the manner in which borders are constructed to contain the female body. The dissertation then moves to an analysis of the law making it a criminal offence in North Korea to cross the national border, and draws on the legal response to the practices of East German border guards in using firearms to prevent the movement of people across the Berlin Wall. Further, in an attempt to understand the refugee border, the dissertation examines asylum cases on illegal exit from other countries in the U.S. to consider the possibility for North Korean asylum seekers. It assesses the work of Canada’s Immigration and Refugee Board in determining North Korean refugee claims from 1990 to 2011. In the final case study, I apply a gendered analysis of the definition of refugee in international law to the restrictions on the right to leave North Korea. To conclude, legal relations between and within borders are mutually exclusive as well as interconnected, and daily border-crossings challenge the existing legal structure for transnational justice.
Gilbert Malcolm Sproat (1834-1913) was one of British Columbia’s first post-confederation Indian reserve commissioners. He served two years as the joint commissioner to the Joint Indian Reserve Commission (1876-1878) and then two more years as the sole commissioner of a reconstituted commission (1878-1880). In these capacities, Sproat left thousands of handwritten pages analyzing his decisions allotting Indian reserves and providing his thoughts more generally about Indigenous peoples and their relationship to the new settler society. His legacy remains today most obviously in surveyed Indian reserve boundaries that represent more than just lines on maps: they also represent the ideas, beliefs, and reasoning that generated them. Through a comprehensive review of Sproat’s writing and an attention to his “intellectual history,” I analyze Sproat’s own explanations to elucidate what he believed about Indigenous peoples and why, and how those beliefs affected his reserve-allotment decisions. I conclude that two fields of 19th-century thought influenced Sproat most strongly: the push for Indigenous “civilization” and humanitarianism. Further, the idea at the core of Sproat’s beliefs is that the only way Canada’s Indigenous “civilization” program would succeed is if Indigenous people were the primary actors in their own “civilization.” By reviewing Sproat’s adult life prior to becoming reserve commissioner and his four-year tenure as reserve commissioner with these new insights, one can see his drive for the “humanitarian civilizing” of Indigenous peoples running throughout his decisions. This broader knowledge about Sproat’s influences, in turn, provide additional perspectives on the Indian reserve-creation process in British Columbia. Whereas previous scholars have addressed Sproat as an adjunct to other primary investigations, I begin with Sproat. I approach him from the perspective of a legal historian interested in the intersection of land; Indigenous occupation, rights, and ownership of land; and settler law about land and Indigenous people. I conclude that he was very much a man of his time, not of ours, and he can be best understood in light of his intellectual, legal, social, and cultural context, including as part of the liberal order framework, an emerging paradigm through which to analyze and understand Canadian history.
In recognition of Canada being a legally pluralist state, there is ample impetus from multiple players within the Canadian legal landscape for Indigenous legal traditions to be recognized, respected and considered as sources of legitimate legal authority. The need to be attentive to Aboriginal interests is becoming increasingly important in the context of government decision making regulating natural resources extraction that the constitutional duty to consult governs. However, state based decision makers must be attentive to the Indigenous legal traditions that comprise the legal systems that existed upon colonial settlement and which remain alive today. Taking the recent Caribou cases as a case study, I analyse the extent to which Dunne Za law was recognised and respected in successive administrative and judicial decision making. Several Dunne Za legal traditions were interwoven throughout the petitioners’ submissions which arguably incited the Caribou cases. Chief of these laws is the traditional seasonal round. I interpret substantive and procedural components to decision making pursuant to this land management regime for maintaining balance and order. Throughout the analysis I highlight cultural, legal and operational constraints to the ability of decision makers to consider Indigenous legal traditions. Chief of these legal impediments is the reasonableness standard of review pursuant to which decisions as to the adequacy of consultation are assessed.The Caribou cases exhibit varying degrees of respect for Dunne Za law. The Chief Justice’s inclusive balancing approach, which considers the legal traditions that were at play as legitimate law, contrasts that of the statutory decision maker and other appellate judge, which, inter alia, devalued the petitioners’ hunting right to an interest capable of being trumped by competing economic interests. On several levels, the Caribou cases are a positive result that ought to be celebrated. However, this case study is an exception among many battles over the duty to consult that are not won. While Indigenous law has a presence in state based decision making, considerable progress must occur in the extent of respect for and consideration of Indigenous legal traditions, before parity of influence exists with common law legal traditions in state based decision-making
This thesis outlines three major moral theories in philosophy – utilitarian, deontological, and pluralist or neo-Aristotelean – and examines their application to the law of condominium. The thesis uses a combination of moral analytic theory and a study of legislation and case law. The thesis begins with a discussion of theoretical methods in legal philosophy, adopting and defending an approach based on general pragmatism and legal realism. It then canvasses the application of moral approaches to property law, with an emphasis on explaining and further developing the application of pluralist moral theory to property. The thesis then considers how each of the three schools of philosophy analyzes the structure of condominium and makes predictions about how condominium issues would be resolved by each approach. In particular, this analysis focuses on how condominium presents a challenge to traditional views of property and highlights the connection between property and sovereign power by incorporating concepts of democratic governance. Afterward, the thesis engages a detailed review of statutes and case law that apply to condominium disputes in British Columbia and Ontario. The thesis concludes that courts and legislatures have been alternating between deontological approaches and pluralist approaches to condominium, with a general trend in recent developments away from the deontological approaches and towards pluralist approaches. The thesis tentatively suggests that on the whole, pluralist approaches lead to more just and equitable results in condominium, and suggests further avenues for study.
De facto extinguishment of Aboriginal rights occurs when Aboriginal peoples are factually precluded from practicing their rights. While the Supreme Court of Canada has established that de facto extinguishment of constitutionally protected Aboriginal rights is an infringement of those rights, its acceptance of sweeping Canadian interests as valid objectives to justify the infringement of Aboriginal rights means the recognition of those rights provides limited protection.This thesis analyzes the nature of Aboriginal rights in Canadian legal system through an examination of the extirpation of eulachon from Nuxalk territory. It describes Nuxalk legal order prior to European arrival in Nuxalk territory, and the imposition of colonial laws to the detriment of Nuxalk sovereignty, territory, and people. It investigates the management of fisheries under Canadian law to show the inefficiencies of the fragmented Canadian legal system. An analysis of Canadian jurisprudence demonstrates that section 35(1) Aboriginal rights have minimal protection under the Canadian legal regime. A consideration of Nuxalk concerns regarding the Species at Risk Act indicates that the consultation doctrine has hindered the protection of Aboriginal rights. A review of the honour of the Crown in relation to Aboriginal rights suggests that fiduciary duties are confined to exceptional circumstances, and effectiveness of lesser obligations remains uncertain. This thesis concludes that the current state of Canadian law leaves the Nuxalk people with little prospect for any meaningful resolution to the eulachon crisis under the Canadian legal system.If Aboriginal rights are to have any substance under Canadian law, courts and governments must acknowledge the existence of these rights on a broader scale. Reconciliation requires the recognition and affirmation of Indigenous sovereignty by the Canadian legal system.