The Legal Relations of ‘Private’ Forests: Making and unmaking private forest lands on Vancouver Island

While the vast majority of forestlands in Canada are considered ‘Crown land’, there are key areas of private forestland. On private land the incidents of fee simple ownership mean the owner emerges as land use decision maker – the “agenda setter” for the land. Yet a richer set of legal relations exists in these forests. Indigenous legal orders derived from an enduring relationship with the land and place also govern forestlands. Using the case of the Esquimalt and Nanaimo Railway lands in British Columbia, this article explores the intersection between historical and contemporary human-forest relations upheld by Anglo-Canadian law and the pre-existing Indigenous legal relations with forestland. This paper illustrates how the current model of Canadian natural resource governance, centered on consultation and accommodation of judicially recognized rights, fails to create adequate space for pluralistic human-forest relations and Indigenous environmental jurisdiction

The Place of Private Property in Land Use Law: A Relational Examination of Ontario's Quarry Conflicts

Land use law structures the way we make decisions about how we live together and with the world around us. In doing so, it shapes our relationships not only with the people around us, but with the places we inhabit and encounter. This dissertation examines how land use law structures the relations between people and the more-than-human world to uphold the ownership model of property relations and to privilege particular forms of land use. Through documentary and interview-based qualitative research, it presents an eco-relational examination of one of the most contentious land uses in Ontario aggregate mineral extraction. The primacy of private ownership in land use decision-making has particular spatial, temporal, social and ecological consequences for the places and communities involved in land use conflicts. As certain forms of land use are privileged through law and legal process, other relations with place fall outside the boundaries of the ownership model of property relations and are deemed less legally significant. Nevertheless, land use conflicts continue to arise because people routinely assert forms of interest in land and resources they do not own. These more-than-ownership relations challenge the presumptive detachment of people from the places they live in, work with, and love. By examining how such relations are imagined, articulated and asserted through a place-based relational framework, this dissertation demonstrates their potential to disrupt the power of private ownership to determine whether and how land should be used. Realizing environmentally just land use decision-making requires a transformative shift in legal property relations to de-centre private ownership and foreground a much broader range of people-place relations. This includes reconceptualizing ownership to incorporate notions of reciprocity and responsibility to the broader set of ecological, physical and material networks of relation that make up a particular place. By changing the way we think about ownership we can change the way we make decisions about land use. In doing so, we have the opportunity to reshape our relations with the places we inhabit, and with each other

The Place of Private Property in Land Use Law: A Relational Examination of Ontario\u27s Quarry Conflicts

Land use law structures the way we make decisions about how we live together and with the world around us. In doing so, it shapes our relationships not only with the people around us, but with the places we inhabit and encounter. This dissertation examines how land use law structures the relations between people and the more-than-human world to uphold the ownership model of property relations and to privilege particular forms of land use. Through documentary and interview-based qualitative research, it presents an eco-relational examination of one of the most contentious land uses in Ontario aggregate mineral extraction. The primacy of private ownership in land use decision-making has particular spatial, temporal, social and ecological consequences for the places and communities involved in land use conflicts. As certain forms of land use are privileged through law and legal process, other relations with place fall outside the boundaries of the ownership model of property relations and are deemed less legally significant. Nevertheless, land use conflicts continue to arise because people routinely assert forms of interest in land and resources they do not own. These more-than-ownership relations challenge the presumptive detachment of people from the places they live in, work with, and love. By examining how such relations are imagined, articulated and asserted through a place-based relational framework, this dissertation demonstrates their potential to disrupt the power of private ownership to determine whether and how land should be used. Realizing environmentally just land use decision-making requires a transformative shift in legal property relations to de-centre private ownership and foreground a much broader range of people-place relations. This includes reconceptualizing ownership to incorporate notions of reciprocity and responsibility to the broader set of ecological, physical and material networks of relation that make up a particular place. By changing the way we think about ownership we can change the way we make decisions about land use. In doing so, we have the opportunity to reshape our relations with the places we inhabit, and with each other

A Colonial Castle: Defence of Property in R v Stanley

In 2016, Gerald Stanley shot 22-year-old Colten Boushie in the back of the head after Boushie and his friends entered his farm. Boushie died instantly. Stanley relied on the defence of accident and was found not guilty be an all-white jury. Throughout the trial, Stanley invoked concerns about trespass and rural crime (particularly property crime), much of which was of limited relevance to whether or not the shooting was an accident. We argue that the assertions of trespass shaped the trial, yet were not tested by the jury through a formal invocation of the defence of property

The \u27Affected\u27 Post-Preimplantation Genetic Diagnosis Embryo

The meaning of health is constructed from a variety of perspectives, including biomedical, social and political, and in a variety of sites, including human bodies and natural environments. In this chapter we suggest that the human embryo is one such site. At first glance the in vitro embryo is not an obvious location from which to examine such constructions; however, we contend that an increasing focus on biomedical determinations of the health of the human embryo (Mykitiuk and· Nisker, 2008b; Van Wagner, Mykitiuk and Nisker, 2008) is significant not only in the application to human embryos themselves, but also in terms of our broader understanding of health in relation to existing adults and children

Constructing \u27Health\u27, Defining \u27Choice\u27: Legal and Policy Perspetives on the Post-PGD Embryo in Four Jurisdictions

Through Preimplantation Genetic Diagnosis, embryos created by IVF are selected for transfer to a woman based on particular characterisations, including the presence of genetic markers or a tissue match for a sibling. In this paper we examine the precise language used in the recent policy and regulatory documents of four jurisdictions (the United Kingdom, Australia, Canada and New Zealand) that in any way characterises the post-PGD embryo. We then explore the mutually constructed relationship between how that embryo is characterised and the purposes for which PGD is applied, as well as the types of uses to which the post-PGD embryo is ultimately relegated. As our analysis indicates, based on the information provided through PGD, a number of possible categorisations of the post-PGD embryo emerge depending both on the outcome of PGD, and the initial intention behind the procedure

The \u27Affected\u27 Post-Preimplantation Genetic Diagnosis Embryo

The meaning of health is constructed from a variety of perspectives, including biomedical, social and political, and in a variety of sites, including human bodies and natural environments. In this chapter we suggest that the human embryo is one such site. At first glance the in vitro embryo is not an obvious location from which to examine such constructions; however, we contend that an increasing focus on biomedical determinations of the health of the human embryo (Mykitiuk and· Nisker, 2008b; Van Wagner, Mykitiuk and Nisker, 2008) is significant not only in the application to human embryos themselves, but also in terms of our broader understanding of health in relation to existing adults and children

Constructing \u27Health\u27, Defining \u27Choice\u27: Legal and Policy Perspetives on the Post-PGD Embryo in Four Jurisdictions

Through Preimplantation Genetic Diagnosis, embryos created by IVF are selected for transfer to a woman based on particular characterisations, including the presence of genetic markers or a tissue match for a sibling. In this paper we examine the precise language used in the recent policy and regulatory documents of four jurisdictions (the United Kingdom, Australia, Canada and New Zealand) that in any way characterises the post-PGD embryo. We then explore the mutually constructed relationship between how that embryo is characterised and the purposes for which PGD is applied, as well as the types of uses to which the post-PGD embryo is ultimately relegated. As our analysis indicates, based on the information provided through PGD, a number of possible categorisations of the post-PGD embryo emerge depending both on the outcome of PGD, and the initial intention behind the procedure

Synthesis Report: Implementing a Regional, Indigenous-Led and Sustainability-Informed Impact Assessment in Ontario’s Ring of Fire

Background: the issue Development in Ontario’s “Ring of Fire”, a significant deposit of minerals, including chromite, located in the boreal region of the far north of the province, has been on the table for many years. Despite the fact that successive governments have hyped the value of the resources, the remoteness and lack of infrastructure, as well as the inability of governments to obtain the buy-in of all of the First Nations communities in the region, has left the Ring of Fire undeveloped. Thus, Ontario’s far north remains one of the world’s largest, most intact ecological systems. The boreal forest and peatlands play key roles in regulating the climate. Proposed mining in this region has generated significant controversy and conflict because the potential for wealth generation is accompanied by the potential for significant and possibly serious negative impacts and cumulative effects, as recently-proposed infrastructure developments quite literally ‘pave the way’ for multiple mines and generations of extraction. The proposals also present a likelihood of inequitably distributed benefits and risks at a variety of physical and temporal scales, with remote Anishinaabe and Anishini communities and their ways of life particularly vulnerable in this regard. These communities are already experiencing an ongoing state of social emergency with youth suicide, addiction and housing crises, as well as a persistent lack of essential community infrastructure, including safe drinking water. For many years, analysts and First Nations leaders have been calling for a regional process in order to broadly assess the expected impacts of the proposed developments in the Ring of Fire. They have noted the complexity of the contemplated infrastructure decisions, the potential for lasting negative impacts, and vast cumulative effects. And yet, without this framework in place, provincial and federal impact assessment (IA) regimes are currently proceeding to assess two individual road proposals that threaten to open the region up to mining. Objectives With this research, our team has synthesized knowledge across a range of areas, including Indigenous-led IA, regional and strategic approaches to IA, and the use of gender-based analysis plus in IA, and applied it to the example of Ontario’s Ring of Fire. In doing so, our primary aim has been to develop, test, and propose a workable plan for how such an approach could be adopted in the specific context of Ontario’s Far North. Methodology Our team began with a period of background preparation and literature review, including following the developments in the region over the fall months, including the progression of the project-level assessments that were being conducted at the federal and provincial levels for the Marten Falls Community Access Road and the Webequie Supply Road. The PI conducted a community visit, workshop and some interviews in collaboration with Neskantaga First Nation in November 2019. Subsequent to that visit, the team collaboratively prepared three draft models for how a regional IA could be implemented in partnership with an Indigenous Governing Authority (IGA) in the region. The team convened a day-long meeting with 14 community representatives, elders and leaders from Neskantaga First Nation in Thunder Bay on January 23, 2020 to discuss, debate and refine the models. The discussion was audio-recorded with permission, transcribed and coded. From there, the team finalized our recommendations and began drafting this report. Key messages The key messages communicated to us by knowledge holders, elders, and leadership in the community engagement sessions included: • The people in the communities are the real authority; the grassroots and the elders must be heard for any process to be legitimate; • The appropriate Indigenous Governing Authority (IGA) must be a collective of affected First Nations, rather than one of the existing tribal councils or regional organizations, such as NAN or Matawa (on the basis of ecological connectivity and socio-cultural impacts related to probable infrastructure locations); • An Elders Advisory Council should be an integral element at all stages of decision-making; • The ongoing state of social emergency must be addressed first, before new projects can be adequately considered. Communities must be satisfied that any potential new projects or infrastructure will mitigate the crises, and enhance long-term social, cultural and ecological sustainability; and, • Any regional approaches need to provide a framework that can effectively guide project-level assessments and approvals, which in turn lead into community-level consent processes, in line with local protocols. Results The recommended model includes a semi-permanent Ring of Fire Commission to be established by agreement between the federal Minister of Environment and Climate Change and an Indigenous Governing Authority made up of impacted and interested First Nations. The Commission, in conjunction with an Elder Advisory Council, should develop a framework for cumulative effects; baseline data (including on the ongoing social emergency); criteria for a modified ‘positive contribution to sustainability’ test; and a regional plan. Under the umbrella of the Commission, we recommend a joint panel review process for making subsequent decisions about individual projects proposed for the region, within the parameters established by the Commission. Decisions on individual projects will subsequently be made independently by each relevant governing authority. For more information, contact Professor Dayna Nadine Scott, [email protected]

Extracting Indigenous jurisdiction on private land: the duty to consult and Indigenous relations with place in Canadian law

Indigenous relations with land are grounded in place-based legal orders which have been regulating the territories now making up Canada for millennia (Borrows 2010, 2018; McGregor 2010). Judicial consideration of Indigenous relations with place has focused on the duty to consult and accommodate with respect to ‘Crown land’ – lands for which federal and provincial governments are the deemed owners. This emphasis on Crown lands is logical – 89 per cent of land in Canada is held by either the federal or provincial Crown (Neimanis 2013). Indigenous claims often expressly exclude private land, wary of courts’ willingness to unsettle third-party expectations, and conscious of relationships with neighbours (Tsilhqot’in Nation v. British Columbia, 2014 SCC 44). However, this emphasis has come at the expense of attention to Indigenous property relations in areas that have been largely privatized. The creation of fee simple lands from Indigenous territories has had a disproportionate impact on particular nations. For example, in heavily populated southern areas the majority of Indigenous lands are now owned by third parties and therefore excluded from modern treaty settlement or other land claims processes (Reynolds 2018). Private lands are also largely controlled by the ‘agenda’ of the private owner (Katz 2008; Van Wagner 2017)