Tuesday, August 5, 2014

Water law in colonial Victoria

In a follow-up to their recent article on the regulation of mine tailings in colonial Victoria, Peter Davies and Susan Lawrence recently published an article on the history of water law in the Victorian goldfields: "A 'mere thread of land': Water races, gold mining and water law in colonial Victoria". The abstract:

Water law in Victoria has its origins in arrangements made during the gold rush to satisfy the needs of miners and towndwellers on the goldfields. Rights of access to water and diversion practices were worked out in the peculiar circumstances of the new colony during the 1850s and 1860s, where economic and social conditions were transformed by the discovery of gold. Miners needed abundant, reliable supplies of water to wash gold from the earth and to power steam engines and processing machinery. Laws regulating access to water, however, were poorly defined during this period, with a mix of English common law and American legal doctrine drawn on and adapted to local conditions. This was in response to disputes that quickly emerged over the nature and scale of water diversions, priority of access and the sale of water rights. Conflict was exacerbated by the highly variable nature of rainfall in Victoria and frequent dry seasons which often disrupted mining activity. Out of this confusion, colonial officials gradually fashioned rules to regulate access to water. The State asserted increasing authority over the distribution of water in this period, laying the foundations for the effective public ownership of water rights by the 1880s. The Victorian experience provided leadership in establishing water regulations which the other Australian colonies later followed.

Friday, August 1, 2014

Water law at the UK Supreme Court

Nandini Chatterjee recently posted at Imperial & Global Forum on an exhibition opening today at the UK Supreme Court in London, "A Court at the Crossroads of Empire: Stories from the Judicial Committee of the Privy Council", which she is co-curating. The exhibition website explains that it:
uses a range of case studies to explore how the JCPC served as an evolving hub of the British Empire - both shaping and shaped by a wide range of different cultures and communities - and how the judges serving on the JCPC applied the common law to both translate and mediate at the crossroads of Britain's colonial interests.
The exhibition includes panels created by my colleague Assaf Likhovski and me on the development of water law and constitutional law in Mandate Palestine through the 1926 Urtas Springs case (Jerusalem-Jaffa District Commissioner v Murra).

I also wrote about the case in a recent article:
Serious objections were raised... [to] the transfer of water from the village of Artas (spelled “Urtas” in the official documents of the time), south of Bethlehem, to Jerusalem. Arab opposition to the attempt of the Jerusalem Water Supply Department to ameliorate the shortage by pumping water from Artas led to a fiercely fought legal battle....
Realizing that the water plan was open to legal attack, the Palestine government enacted legislation, known as the Urtas Springs Ordinance, 1925, empowering the High Commissioner to authorize the Jerusalem municipality to take water from the Artas spring for a period of up to 12 months. Water sufficient for the Artas inhabitants’ domestic uses, animal watering, and irrigation of tree plantations was immune to taking. While water used for irrigating annual crops could be taken for the Jerusalem system, the Ordinance ordered that compensation be paid for damage to crops and for losses from inability to plant crops due to the reduction in water available to the village. Disputes between Artas residents and the Jerusalem water department over the level of compensation were to be decided by an arbitrator to be appointed by the High Commissioner, with no appeal from his decision.
Moghannam Moghannam, the Artas villagers' attorney
(Before Their Diaspora)
With a statute explicitly authorizing the water diversion, the only possible legal arguments available to the Artas residents were of the constitutional type, impugning the validity of the legislation itself. The Artas petitioners contended that the Urtas Ordinance violated their civil rights by taking private property—water—and providing an inadequate compensation mechanism, with no right of recourse to the regular courts of the land. Such a taking was in violation, they argued, of Article 2 of the League of Nations Mandate, which made the Mandatory responsible for “safeguarding the civil and religious rights of all the inhabitants of Palestine, irrespective of race and religion.” Since Palestine Order in Council (Article 17(I)(3)) provided that “no Ordinance shall be promulgated which shall be in any way repugnant to or inconsistent with the provisions of the Mandate”, they claimed, this violation of the Mandate invalidated the legislation in question.

Thursday, July 31, 2014

EP Thompson on (forest) law in history

Kurt Newman at US Intellectual History Blog had an interesting post the other day on the place of legal history in the thought of Marxist historian EP Thompson. The post includes a long quote from Thompson's Whigs and Hunters (1975), arguing that law (here, specifically the early eighteenth century English law against commoners' traditional uses of the forests) functioned as more than just a mystifying tool of (upper-)class power. Some selections:
To be sure, I have tried to show, in the evolution of the Black Act, an expression of the ascendancy of a Whig oligarchy, which created new laws and bent old legal forms in order to legitimize its own property and status; this oligarchy employed the law, both instrumentally and ideologically, very much as a modern structural Marxist should expect it to do. But this is not the same thing as to say that the rulers had need of law, in order to oppress the ruled, while those who were ruled had need of none.
What was often at issue was not property, supported by law, against no-property; It was alternative definitions of property-rights: for the landowner, enclosure; for the cottager, common rights; for the forest officialdom, ‘preserved grounds’ for the deer; for the foresters, the right to take turfs. For as long as it remained possible, the ruled––if they could find a purse and a lawyer––would actually fight for their rights by means of law; occasionally the copyholders, resting upon the precedents of sixteenth-century law, could actually win a case.
When it ceased to be possible to continue the fight at law, men still felt a sense of legal wrong: the propertied had obtained their power by illegitimate means. Moreover, if we look closely into such an agrarian context, the distinction between law, on the one hand, conceived of as an element of ‘superstructure,’ and the actualities of productive forces and relations on the other hand, becomes more and more untenable.
For law was often a definition of actual agrarian practice, as it had been pursued ‘time out of mind.’ How can we distinguish between the activity of farming or of quarrying and the rights to this strip of land or to that quarry? The farmer or forester in his daily occupation was moving within visible or invisible structures of law…
...people are not as stupid as some structuralist philosophers suppose them to be. They will not be mystified by the first man who puts on a wig.

Monday, July 28, 2014

Yellow fever control in colonial Senegal

The latest issue of the Journal of Colonialism and Colonial History has an article by Christian Strother, "'A Danger Which More or Less Threatens Us All': Yellow fever and the politics of disease control in Senegal 1890–1914". The abstract:
Prior to 1900, the colony of Senegal had suffered from periodic epidemics of yellow fever. In an attempt to combat the disease, the government of Senegal began to enact new legislation to prevent the spread of epidemics. The government hoped that these new laws would allow them to control yellow fever epidemics without hurting the economic viability of the colony, but they found that the new laws created new challenges. Within the first decade of the passage of the new legislation a series of formal complaints and court cases would challenge sanitation laws and test the limits of government authority.
School of Medicine and Chemistry inaugurated in Dakar in 1918 (ASNOM)

Friday, July 25, 2014

Environmental law and policy in Brazil (1930-1945)

[Today we have a guest post from Frederico Freitas, a Ph.D. Candidate in Latin American History at Stanford, who recently presented a paper at the World Congress of Environmental History on environmental law during the Vargas regime:]

Ranger of the newly created Forest Service, c. 1944
(O Serviço Florestal no Biênio 1943-1944
(Rio de Janeiro: Ministry of Agriculture, 1945))
Brazil during the first Getúlio Vargas regime (1930-1945) produced a boom in conservationist legislation that included a forest code, a new water law, the creation of the country's first national parks, and the establishment of a forest agency and a national institute of forestry. The move by the Vargas regime to implement a conservationist agenda was unprecedented—apart from the establishment of botanical gardens and a few protected semi-urban forests around Rio de Janeiro, previous governments had never acted to establish a conservation program. The change brought by Vargas had its root in a new phenomenon—the appearance on the Brazilian national stage of a cadre of conservationists who were able to align US- and Europe-born ideas of conservation of nature with a nationalist discourse akin to the one put forward by Vargas’s ideologues.

Yet, all the energy invested in environmental legislation failed to change the previous pattern of lack of state commitment to environmental issues. In fact, the new legislation concealed a reality of chronic lack of federal control over both public and private land. Brazil had a long tradition of what historian José Drummond called a “weak hand in controlling the use of associated resources and features, such as soils, ores, water, coasts, flora, and fauna.” After the fall of the Brazilian monarchy and the promulgation of the Republican constitution of 1891, all public land, which had been in control of the Brazilian state in the nineteenth century, was then turned to the hand of state governments. In the Vargas years the Brazilian federal government had almost no public land left to manage besides a handful of federal and military properties and the land alongside railroads. 

In the 1930s the federal government not only did not control most of Brazil’s public land but also had no legal instrument to expropriate private land. It was only in 1941 that the central government issued a decree-law granting itself the powers to expropriate land for public interest. This new legislation allowed the federal government to expropriate both private land and public land owned by state or municipal governments. However, it failed to trigger an era of federal intervention in land issues. The regime of Getúlio Vargas, despite being turned into a fascist-leaning dictatorship after 1937, lacked the power to curb the interest of the local agrarian elites.

Thursday, July 24, 2014

The Versailles Conference: upcoming deadlines

The deadline for the American Society for Environmental History 2015 conference in Washington DC (March 2015) has been extended till July 31. The theme, "Turning Protest Into Policy: Environmental Values and Governance in Changing Societies", seems particularly appropriate for legal-themed papers and panels.

The British Legal History Conference 2015 (Reading, July 2015) has a call for papers out; the themes is "Law: Challenges to Authority and the Recognition of Rights". Paper proposals are due September 30.

The European Society for Environmental History's biennial conference will be held in Versailles in June-July 2015. This conference, too, seems particularly welcoming for law-related work, as the call for proposals says, "Through an emphasis on disciplines, methods, and questions, we hope to encourage dialogue with all types of history, other humanities and social sciences, and the natural sciences." Submissions are due by October 1.

Feel free to use the Environment, Law, and History listserve to find potential panelists with similar interests!

Attendees at an earlier conference at Versailles

Wednesday, July 23, 2014

Evolution and environmental law

Jotwell recently posted "A Legal Beagle's Voyage", Steve Gold's review of Nicholas A. Robinson, "Evolved Norms: A Canon for the Anthropocene", in Rule of Law for Nature (Christina Voigt ed., Cambridge UP, 2013). Robinson, Gold tells us, observes that "the study of how human law shapes the planet’s evolutionary future barely acknowledges the role of biological evolution in shaping human law."
In Evolved Norms, Robinson sets out to correct this by connecting the contemporary emergence of consensus environmental law to the evolutionary emergence of widespread behavior patterns favored by natural selection. Drawing on sources in both the biological and social sciences, Robinson argues that humans have evolved instinctive, “hard-wired” normative preferences for cooperation, biophilia, and resilience. These norms are reflected in design principles that have shaped existing environmental laws – and that should be relied on to structure the global environmental law we will need to confront future ecosystem disruptions both imminent and distant.
Gold is somewhat skeptical:
Robinson’s claim that cooperation, biophilia, and resilience have become built-in principles of environmentally sensible behavior seems based more in dogged optimism than in observed reality. After all, if these supposedly instinctive norms truly dominated human behavior (and the legal systems humans build to channel their behavior), the world would not be facing the “existential challenges” Robinson rehearses at the outset of Evolved Norms.

Tuesday, July 22, 2014

Wilderness management agencies

Two articles from Environmental Law's latest issue each compare the performance of two US federal agencies tasked with protecting wilderness, examining, among other factors, the legal and institutional history of the agencies.

Robert Glicksman's "Wilderness Management by the Multiple Use Agencies: What Makes the Forest Service and the Bureau of Land Management Different?" explains (461, notes omitted):
a commitment to preservation of wild lands is deeply rooted in the Forest Service’s history. The utilitarian philosophy to which Gifford Pinchot, the first Chief of the Forest Service, was committed “was basically antithetical to the views of John Muir and other wilderness advocates.” Soon after Pinchot’s departure in 1910, however, interest within the agency in preserving national forest lands surfaced, and agency scientists in the ensuing two decades criticized the significant expansion of the national forest road system, calling for permanent protection of wilderness regions of the forests. In 1919, Arthur Carhart, a landscape architect employed by the Forest Service, persuaded the agency’s office in Denver to halt development that threatened the scenic beauty of Trapper Lake in the White River National Forest. During the 1920s, Carhart and another Forest Service employee, Aldo Leopold, began pressing for the creation of national forest wilderness areas. In 1924, the Forest Service established the Gila Primitive Area, “the first formally protected wilderness in the United States, perhaps in the world,” and the establishment of five more such areas followed shortly thereafter.
Regulations in the 1920s and '30s led to the designation of over 9 million acres of wilderness by the forest service before the adoption of the Wilderness Act in 1964. The BLM, on the other hand, followed a different path (462):
Until Congress enacted the BLM’s organic act, FLPMA, in 1976, the agency’s traditional mission involved transferring land to private interests and facilitating resource extraction. As Michael Blumm explained, “Congress considered BLM lands temporary public lands—soon to be sold or granted to private owners. Thus, designating wilderness on BLM lands made little sense until the federal policy of disposition changed.” It was not until FLPMA’s adoption that Congress settled on a policy that “the public lands be retained in Federal ownership” and that those lands “be managed in a manner that will protect the quality of scenic, scientific, historical, ecological, [and] environmental . . . values,” and “that, where appropriate will preserve and protect certain public lands in their natural condition. . . .”
Sandy Zellmer's "Wilderness Management in National Parks and Wildlife Refuges" deals with National Park Service (NPS) and Fish and Wildlife Service (FWS), neither of which have been particularly supportive of wilderness protection (508-9):

Monday, July 21, 2014

More on early modern water law treatises

In response to my desire to hear more about the water law treatises described in Mark Weiner's video, "Water, Paper, Law", Yale Law's Rare Book Librarian Mike Widener (featured in the video) has posted information on the books featured in the video. These include a treatise by the great medieval jurist Bartolus and other works on Italian, German, and Dutch water law.

The page below is taken from a 4-volume Italian treatise on Roman water law, published originally 1670-86. Stay tuned for more on Mike's work on these interesting books.

from Francesco Maria Pecchio, Tractatus de aquaeductu (2nd ed., Ticini Regii, [1700?]-1713)
Rare Book Collection, Lillian Goldman Law Library, Yale Law School

Wednesday, July 16, 2014

Planning for public lands

Robin Kundis Craig has posted "An Historical Look at Planning for the Federal Public Lands: Adding Marine Spatial Planning Offshore". Though the article's focus is on marine spatial planning (the marine equivalent of land-use planning) in the present, it opens with a historical survey of US law dealing with planning on federal lands: the Classification and Multiple Use Act (1964) and Federal Land Policy and Management Act of 1976 for Bureau of Land Management lands; and the Multiple Use Sustained Yield Act of 1960, the Forest and Rangeland Renewable Resources Planning Act of 1974, and the National Forest Management Act of 1976 for National Forests.

Triggering planned avalanches, Gallatin National Forest, 1970.
(Ross McPherson, Forest Service Photo Collection, National Agricultural Library.
Courtesy Forest History Society)