Benjamin Isitt B.A
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Patterns of Protest: Property, Social Movements, and the Law in British Columbia by Benjamin Isitt B.A. (Honours), University of Victoria, 2001 M.A, University of Victoria, 2003 Ph.D. (History), University of New Brunswick, 2008 LL.B., University of London, 2010 A Dissertation Submitted in Partial Fulfilment of Requirements for the Degree of DOCTOR OF PHILOSOPHY in the Faculty of Law Benjamin Isitt, 2018 University of Victoria All rights reserved. This dissertation may not be reproduced in whole or in part, by photocopy or other means, without the permission of the author. Supervisory Committee Patterns of Protest: Property, Social Movements, and the Law in British Columbia by Benjamin Isitt B.A. (Honours), University of Victoria, 2001 M.A, University of Victoria, 2003 Ph.D. (History), University of New Brunswick, 2008 LL.B., University of London, 2010 Supervisory Committee Dr. Rebecca Johnson, Co-Supervisor University of Victoria Faculty of Law Dr. Eric Tucker, Co-Supervisor Osgoode Hall Law School and University of Victoria Faculty of Graduate Studies Dr. William Carroll, Outside Member University of Victoria Department of Sociology Dr. John McLaren, Additional Member University of Victoria Faculty of Law ii Abstract Embracing a spatial and historical lens and the insights of critical legal theory, this dissertation maps the patterns of protest and the law in modern British Columbia―the social relations of adjudication—the changing ways in which conflict between private property rights and customary rights invoked by social movement actors has been contested and adjudicated in public spaces and legal arenas. From labour strikes in the Vancouver Island coal mines a century ago, to more recent protests by First Nations, environmentalists, pro- and anti-abortion activists, and urban “poor peoples’” movements, social movement actors have asserted customary rights to property through the control or appropriation of space. Owners and managers of property have responded by enlisting an array of legal remedies and an army of legal actors—lawyers, judges, police, parliaments, and soldiers—to restore control over space and assert private property rights. For most of the past century, conventional private property claims trumped the customary claims of social movements in the legal arena, provoking crises of legal legitimacy where social movement actors questioned the impartiality of judges and the fairness of adjudicative procedures. Remedies and legal technologies asserted by company lawyers, awarded by judges, and enforced by police and soldiers were often severe―from Criminal Code proscriptions against riotous assembly and deployment of military force, to the equitable remedy of the injunction and lengthy prison sentences following criminal contempt proceedings. But this pattern shows signs of change in recent years, driven by three major trends in British Columbia and Canadian law: (1) the effective assertion of indigenous customary rights; (2) growing recognition of the importance of human rights in democratic societies, particularly in the context of the Canadian Charter of Rights and Freedoms; and (3) changes in the composition of the legal profession and judiciary. This changing legal landscape has created a new and evolving legal space, where property claims are increasingly treated as contingent rather than absolute and where the rights of one party are increasingly balanced by customary rights, interests, and aspirations of others. Consequently, we are seeing a trend toward the dilution of legal remedies traditionally available to the powerful, creating space for the assertion of non-conventional property claims and the emergence of new patterns of power relations. iii Table of Contents Supervisory Committee…………………………………………………………………...ii Abstract…………………………………………………………………………………...iii Table of Contents…………………………………………………………………………iv List of Appendices………………………………………………………………………...v List of Abbreviations…………………………………………………………………......vi Acknowledgements………………………………………………………………………vii Dedication………………………………………………………………………………...ix Chapter 1. Introduction: The Social Relations of Property, Protest, and the Law….…….1 Chapter 2. Masters, Servants, and Judges during the Vancouver Island “War”…………39 Chapter 3. “The Closeness of the Companies and the Courts”: Crafting Injunction Law in the Era of Industrial Legality……………….75 Chapter 4. Breaching the Bubble Law: Spatial and Legal Battles over Reproductive Choice…………………..109 Chapter 5. Legal Wars in the Woods: The Making of a Thousand Criminals at Clayoquot Sound……………143 Chapter 6. Standoffs, Roadblocks, and Breakthroughs for Indigenous Property Claims..…………………………………………………………………173 Chapter 7. The Right to Sleep: Tenting as Protest in 21st Century British Columbia....227 Conclusion...……………………………………………………………………………258 Appendices……………………………………………………………………………..272 Bibliography……………………………………………………………………………280 Concordance……………………………………………………………………………298 iv List of Appendices 1. Chronology of Key Events…………………………………………………………...272 2. Justices of the British Columbia Court of Appeal, 1910-2018………………………277 3. Canadian Labour Congress resolution on injunctions, May 1966…………………...279 v List of Abbreviations AIM………………………………American Indian Movement AFN………………………………Assembly of First Nations BCCA…………………………….British Columbia Court of Appeal BCFL……………………………..British Columbia Federation of Labour BCGEU…………………………..BC Government Employees’ Union BCTF……………………………..British Columbia Teachers’ Federation BCSC……………………………..British Columbia Supreme Court CCF……………………………….Co-operative Commonwealth Federation CFI………………………………..Council of Forest Industries CLC……………………………….Canadian Labour Congress CMA………………………………Canadian Manufacturers Association CPC……………………………….Communist Party of Canada HTG………………………………Hul’qumi’num Treaty Group HNC………………………………Haida National Council IBEW……………………………..International Brotherhood of Electrical Workers IPS…………………………………Islands Protection Society IWA……………………………….International Woodworkers of America IWW………………………………Industrial Workers of the World LSBC……………………………...Law Society of British Columbia MLL……………………………….Miners’ Liberation League NBBC……………………………..Native Brotherhood of British Columbia NDP……………………………….New Democratic Party RCMP……………………………..Royal Canadian Mounted Police SC…………………………………Social Credit Party SCC……………………………….Supreme Court of Canada SPC……………………………….Socialist Party of Canada SPEC………………………………Society Promoting Environmental Conservation TAPS……………………………...Together Against Poverty Society UBCIC…………………………….Union of British Columbia Indian Chiefs UFAWU…………………………..United Fishermen and Allied Workers’ Union UMWA……………………………United Mine Workers of America VBT……………………………….Vancouver Board of Trade VDLC…………………………….Vancouver and District Labour Council VSE…………………………….....Vancouver Stock Exchange VWC……………………………...Vancouver Women’s Caucus VOW……………………………...Voice of Women WCWC……………………………Western Canada Wilderness Committee WFM………………………………Western Federation of Miners WFP……………………………….Western Forest Products vi Acknowledgements Let me begin by thanking Professors Rebecca Johnson and Eric Tucker for supervising the completion of this dissertation with a blend of critical insight, mentorship, and good humour. I would also like to thank Professor Judy Fudge for her encouragement of my graduate studies in Law, beginning with a generous fellowship followed by useful advice that engrained the importance of locating technical legal rules within the wider social relations of law. I appreciate the assistance of colleagues in the University of Victoria Faculty of Law, particularly Professors John McLaren, Hester Lessard, Hamar Foster, Jeremy Webber, and Michael M’Gonnigle, as well Lorinda Fraser, Dalyce Barrs, and Abby Winograd. Professor William Carroll at the University of Victoria Department of Sociology introduced me to the method of network analysis, helping shape the analytical approach in this dissertation. Don Mitchell and Andrew Horvath provided a valuable introduction into the world of labour geography and critical geography. Librarians, archivists, and kindred scholars at several institutions contributed to the study in vii important ways, sharing sources and theoretical insight. The University of Victoria and its Faculty of Law materially supported this research through a doctoral fellowship and the Howard E. Petch Graduate Research Award. A number of participants, from Haida leader Guujaaw to fisherman’s union organizer George Hewison, shared their insights into how law has operated in response to clashes between private property and social movements. Finally, I wish to thank family and friends for ongoing encouragement and support. viii For Linda and Julian ix Chapter 1. Introduction: The Social Relations of Property, Protest, and the Law In 1959, British Columbia Supreme Court Justice Norman Whitaker, a former Liberal speaker of the provincial legislature, sentenced labour journalist George North to thirty days in prison for publishing an editorial that lamented the “closeness of the companies and the courts.” North’s writings in The Fisherman newspaper, particularly his editorial “Injunctions Won’t Catch Fish Nor Build Bridges,” were found to incite “defiance of the court’s authority,” thereby interfering with the administration of justice in BC.1 The case occurred in the context of a tense labour dispute between the Dominion Bridge Company and the Ironworkers’ union, which had obstructed construction of the Second Narrows Bridge over Burrard Inlet in Vancouver. The George North case illuminates