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On Friday we discussed the place of French and American law in Privy Council water decisions , leading up to the seminal 1858 case of  Miner v. Gilmour . Today we'll look at how Miner  became an inter-imperial authority, as Lord Kingsdown's summary of the relative rights of riparian owners was cited widely throughout the British Empire and beyond (for examples of the case's influence, see the article  on which this series is based). Though arising in a case in which the applicable law was the old French law of Canada East, on the imperial periphery, it was taken as a faithful exposition of the common law of England, the imperial metropolis. In the 1876 case of Lyon v. Fishmongers’ Company, for instance, dealing with the right of access of riparian owners to the River Thames, the House of Lords (at the time the highest court for cases arising in Britain itself) referred to it as one of ‘the best authorities’ on riparian doctrine. "a lord of appeal" [Colin Blackbu...

Yesterday I discussed why American water law may have been attractive to judges applying French law in Canada. Today we move the focus back to London and the Privy Council: The reliance by counsel in Miner v. Gilmour on American sources for a question of French law, along with the court’s conflation of the French law and the common law (discussed in Part III of this series ), would seem to be a faithful expression of the water law of Canada East, with its own heavy reliance on American sources and blending of the French law and common law, often by way of citing those same American sources. W. Holman Hunt, The Right Hon. Stephen Lushington (1862) (Victorian Web) Moreover, the incorporation of the civil law into the common law of waters and the export of this mélange throughout the common-law world might be seen as the product not only of a one-time encounter with the law of Canada East in Miner v. Gilmour, but of an ongoing engagement with this odd jurisdiction, at once an integral p...

Yesterday I discussed the extensive use water law judicial decisions in the courts of Lower Canada, with its pre-revolutionary French property law, made of American sources . Today I discuss why they may have looked to a jurisdiction that had never belonged to the old empire from which the local law derived, and no longer belonged to the new empire of which Canada was now a part.  Hon. Justice T.C. Aylwin (Library and Archives Canada) In his dissent in the 1859 case of Boswell v. Denis Judge Aylwin indicated one reason why Canadians may have preferred American law over French in some cases. According to French law, a ‘navigable and floatable’ river was a public one, in which the public enjoyed rights that could not be impaired by the riparian owners. As the river in question in Boswell, the Jacques-Cartier, contained rapids and was therefore not ‘navigable’ by boat traffic, the majority of the court straightforwardly applied the French test and ruled that it could not be considered a ...

Continuing where yesterday's post left off: Canada’s broad St. Lawrence River and its tributaries were the sites of intensive water use in the mid-nineteenth century. They served as fishing grounds, highways for water craft, conduits for floating logs and sources of power for both traditional grist mills and new industrial facilities. Uses and users often came into conflict, and these conflicts often landed up in court. Jonathan Sewell (Appleton's Cyclopaedia of American Biography , 1900) The earliest fully reported case of this type was the 1832 case of Oliva v. Boissonnault . James Oliva sued Nicolas Boissonnault in the court of King’s Bench, District of Quebec, for placing obstructions in the Rivière du Sud, blocking the floating of logs downstream to the St. Lawrence. Chief Justice Jonathan Sewell ruled for Oliva, explaining that under French law the public had a right of passage on every stream capable of floating logs or rafts. Alongside his discussion of French law, he...

Continuing where yesterday's post left off: As the judges of the Privy Council recognized, the law governing the conflict between Miner and Gilmour over the waters of the Yamaska was not English law. Quebec, before being conquered by the British in 1760, had been part of the French Empire. A royal edict of 1663 had declared the law of New France to be the law as applied in the Parlement of Paris.  This law included royal ordinances, Roman law as expounded by jurists, and the sixteenth-century official collection of the customary law of Paris known as the Coutume de Paris. The Quebec Act of 1774, passed by the British Parliament a few years after the British conquest of Canada from France, declared that the laws of property existing in the province of Quebec pre-conquest would remain in force under British rule. The water law applicable to the case at hand was thus the law of the old French Empire, that is to say the law of ancien régime Paris, ironically no longer in force in Franc...

It seems I forgot to mention my own article when I posted it a while back.  "Riparian Rights in Lower Canada and Canada East: Inter-Imperial Legal Influences"  was published as chapter 4 of  Imperial Co-operation and Transfer, 1870-1930: Empires and Encounters   (Roland Cvetkovski & Volker Barth eds., Bloomsbury, 2015). I'll do a few posts based on the article now; for the full version, please see the book. One of the most dynamic areas of law in the nineteenth-century Anglo-American world was that of water rights, or, as it was typically denoted then, “riparian rights”. This body of law dealt with the relative rights of owners of land adjacent to water—riparian land—to use the flowing waters, whether for power, irrigation, transportation, fishing, or waste disposal. The historical development of the law in this field in the nineteenth century has been analysed from several points of view, including economic property theory and Marxian legal history.  Transnational as...

OAS headquarters in Washington Carmen Gonzalez recently posted "Environmental Racism, American Exceptionalism, and Cold War Human Rights" . The abstract: Environmental justice scholars and activists coined the terms “environmental racism” to describe the disproportionate concentration of environmental hazards in neighborhoods populated by racial and ethnic minorities. Having exhausted domestic legal remedies (or having concluded that these remedies are unavailable), communities of color in the United States are increasingly turning to international human rights law and institutions to challenge environmental racism.  However, the United States has ratified only a handful of human rights treaties, and has limited the domestic application of these treaties through reservations and declarations that preclude judicial enforcement in the absence of implementing legislation. Indeed, the U.S. has generally resisted scrutiny of its human rights record by domestic or international ins...

I'm happy to report that Feedspot has named Environment, Law, and History one of the top 100 environmental blogs. Thanks to all of you - the readers, writers, commenters, mentioners, and so on - who made it happen!

David Zetland and Bene Colenbrander recently posted "The Evolution of the Dutch Drinking Water Sector" . The abstract: Dutch drinking water companies (DWCs) have brought more water of better quality to more people over the past 160 years, but their institutional environment has changed with social priorities. We divide these changes into four eras in which an initial solution leads to a new constraint that forces a change in priorities and thus DWC actions. The first era begins around 1850 when polluted common pool water attracts sellers of drinking water as a private good. Priorities changed around 1900 as the government pushed for a network expansion that would bring drinking water services to all as a public good. The third era began around 1950 as strains on common-pool budgets and water supplies shifted the focus to rationalization and efficiency. The fourth and current era began around 1970 with DWCs being asked to restore ecosystems and play a larger role in the commun...

(Sorry for the long silence, I've been busy with some other things. As always, if you're interested in contributing posts to the blog, I'd be more than happy to help! In the meantime:) Sarah Milov (a co-founder of this blog) recently published a piece in the Washington Post on the history of grass-roots anti-tobacco campaigns that might serve as a model for climate activism today. Some highlights: Activists won the fight against tobacco by working on the local, not national, level. Neither the Occupational Safety & Health Agency nor the Environmental Protection Agency regulate secondhand smoke. Congress has never passed a Non-Smokers’ Rights Act . Instead, 41 states and 1,354 cities have enacted laws to protect the health of citizens. They did so in response to the sustained activism of men and women who argued that the government was not doing enough to protect their rights. ***** In 1973, the dogged efforts of Betty Carnes, a sexagenarian amateur ornithologist, resul...