Law, Culture, and the City

Osgoode Hall Law School of York University Osgoode Digital Commons PhD Dissertations Theses and Dissertations 4-2-2018 Law, Culture, and the City: Urban Legal Anthropology, the Counterhegemonic Use of Hegemonic Legal Tools, and the Management of Intangible Cultural Heritage Spaces Within Toronto's Municipal Legal Frameworks Sara Gwendolyn Ross Follow this and additional works at: https://digitalcommons.osgoode.yorku.ca/phd Part of the Anthropology Commons, Comparative and Foreign Law Commons, and the Music Commons LAW, CULTURE, AND THE CITY: URBAN LEGAL ANTHROPOLOGY, THE COUNTERHEGEMONIC USE OF HEGEMONIC LEGAL TOOLS, AND THE MANAGEMENT OF INTANGIBLE CULTURAL HERITAGE SPACES WITHIN TORONTO’S MUNICIPAL LEGAL FRAMEWORKS SARA GWENDOLYN ROSS A DISSERTATION SUBMITTED TO THE FACULTY OF GRADUATE STUDIES IN PARTIAL FULFILLMENT OF THE REQUIREMENTS FOR THE DEGREE OF DOCTOR OF PHILOSOPHY GRADUATE PROGRAM IN LAW YORK UNIVERSITY TORONTO, ONTARIO APRIL 2018 © Sara Gwendolyn Ross, 2018 ABSTRACT The deep process of revision needed in managing Toronto and Canada’s urban intangible cultural heritage not only affects redevelopment decisions and cultural policies at the municipal level, and cultural heritage legislation and regulations at the provincial level, but it also calls for the need to address issues at the federal level, such as correctly acknowledging what terms like “heritage value” mean when drawn from international cultural heritage legislation and the currently unratified status of the UNESCO Convention on the Safeguarding of the Intangible Cultural Heritage within Canada. Through the application of urban legal anthropology, as well as through a lens drawing on urban legal geography, this dissertation canvases cases of unequal valuation of cultural spaces linked to musical subcultures and Toronto’s redevelopment strategies and Music City initiatives. It then turns to what has led to this unequal valuation and examines various existing legal tools in Ontario that lend themselves to counterhegemonic application allowing for better and more equitable intangible cultural heritage protection in the city. These tools will include, for example, the Ontario Heritage Act and Regulations and Heritage Conservation Districts among others. This dissertation also turns to international legal tools, and legal tools used in other jurisdictions, for the protection of intangible cultural heritage spaces, and which could realistically be implemented within existing Canadian and Ontarian heritage legislation. Finally, the importance of community consultation practices and paths towards more equitable and engaged community consultation will be explored. These are important considerations where encouraging and engaging the cultural and artistic expression of urban citizens is essential for creating societies and sustaining cities that value and respect cultural diversity and human rights. ii DEDICATION For the many beautiful souls with whom I have spent countless hours silently sharing floors, stages, fields, and strange spaces in a common love of music, dance, performance, and bass, from sunset to sunrise, during those silent dark hours of the day/night spectrum, in the early morning as the sun rose, and in the middle of a Sunday afternoon. For anyone who loved and lost a space that was important to them, brought meaning to their life, helped them through a time when they felt lost or lonely, brought comfort alongside joy and happiness, and provided a place to be and to look forward to being. And for the person who has shared many of these places with me over the years in so many different cities: Thank you, James, for watering the seed of this dissertation—my frustration with injustice, noise complaints, displaced music venues, marginalized art and performance, and castigated street art. Thank you for encouraging me to think about researching and writing about these passions, helping me to remember why I ventured into the legal sphere in the first place, and patiently and actively listening to my PhD-induced ramblings while I worked out the ins and outs of this dissertation. Thank you also for always being willing to read drafts, half-finished musings, and taking the time to provide careful and candid feedback. Thank you for keeping me company in the many, often very long, committee meetings, community consultations, and during those really early mornings and very late nights when we dragged ourselves to and from the outer edges of Toronto to my various research spots downtown and in the middle of nowhere, and also for making academic conferences taking place in even the most obscure places an adventure. And to my parents who dutifully and (somehow) understandingly drove my sixteen-year-old self to raves that meant so much to me, always getting me there just in time to stand in the requisite hour-long line up and still make it inside to catch the headliner. Finally, my Osgoode PhD crew, and LP friends who always ensured a constant supply of chats, support, and snacks, especially in Room 3037. iii ACKNOWLEDGEMENTS This research was supported by the Social Sciences and Humanities Research Council of Canada. I would also like to acknowledge the generous support of Osgoode Hall Law School and York University. I would like to thank my PhD supervisor Susan Drummond for her support, feedback, and encouragement all along the way, and for ensuring I felt unconstrained in creating the kind of dissertation I envisioned. Thank you also to my dissertation committee—Sonia Lawrence and Kate Sutherland—for your thoughts and guidance, and to Ruth Buchanan for your feedback as I began interacting with and assessing my case sites. Finally, thank you to the members of my final dissertation committee who joined at the end of the process—Sheila Foster and Cynthia Williams—provided helpful commentary and discussion on the final product. iv TABLE OF CONTENTS ABSTRACT ................................................................................................................................... ii DEDICATION ............................................................................................................................. iii ACKNOWLEDGEMENTS ........................................................................................................ iv TABLE OF CONTENTS ............................................................................................................. v INTRODUCTION ........................................................................................................................ 1 A. A Note on Gentrification .............................................................................................. 8 CHAPTER ONE: THEORIES OF VALUE, CULTURE AND CULTURAL SPACES IN THE CITY ................................................................................................................................... 10 I. INTRODUCING USE-VALUE VERSUS EXCHANGE-VALUE IN THE CITY ……………………………………………………………………..….……….…..…..10 II. CULTURE IN THE CITY: WHAT IT IS AND WHY IT MATTERS ................. 13 A) Defining Culture (Or Not)? ................................................................................... 14 III. RECALIBRATING THE CALCULATION OF BOURDIEUSEAN CULTURAL CAPITAL IN THE CITY ........................................................................... 17 IV. RELATIONALLY VULNERABLE CLAIMS TO HIGH USE-VALUE SPACES OF COMMUNITY CULTURAL AND SUBCULTURAL WEALTH ......... 21 V. THE INTERNATIONAL RIGHT TO CULTURE AND CULTURE IN THE CITY AS ENSHRINED IN INTERNATIONAL LEGAL FRAMEWORKS .............. 31 A) The Right to Culture as Enshrined in Nascent City-Based Human Rights Charters ........................................................................................................................... 33 VI. OTHER LEGAL TOOLS FOR PROTECTING THE RIGHT TO CULTURE AND INTANGIBLE CULTURE IN THE CITY ............................................................. 35 A) What is “Intangible” Culture and Intangible Cultural Heritage ...................... 36 VII. RESPECTING “DIVERSITY” VERSUS DIVERSITY IN CITIES AND CULTURE: BUEN VIVIR AND MOVING TOWARDS AN EQUALITY OF DIFFERENCES ................................................................................................................. 39 A) What is Buen Vivir?................................................................................................ 44 B) Towards A Buen Vivir in the City ......................................................................... 48 VIII. THEORIES OF HERITAGE, PROPERTY, USE, AND SPACE, AND SUBALTERN COSMOPOLITANISM TO ACHIEVE MORE EQUITABLE TREATMENT FOR PEOPLE IN THE CITY ................................................................ 52 A) Rights in Space and Use and Law’s Governance of Space and Use in the City 53 B) Subaltern Cosmopolitanism and Urban Law and Legislation: A Site for the Counterhegemonic Use of Hegemonic Legal Tools ..................................................... 55 v IX. THE COMMODIFICATION OF CULTURE, REIFICATION OF EXCHANGE-VALUES, AND BARRIERS TO MEANINGFUL ACKNOWLEDGEMENT OF (INTANGIBLE) CULTURAL HERITAGE VALUE, COMMUNITY (SUB)CULTURAL WEALTH, AND USE-VALUE IN THE CITY .. 58 A) Culture as Commodity in City Rejuvenation and Redevelopment Strategies, the Desire for “Authenticity” in the City, and Gentrifying Effects .................................. 58 B) Toronto’s Growth Machine, Culture and Heritage as Commodity: Reifying the “Authentic” and the “Beautiful” Elements of Culture in City Redesign .................. 64 C) Vulnerability

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