Wednesday, November 12, 2014

Destined to be (if not already) Classic Land Use Law Books from Canada - by Deborah Curran

I often reflect on the paucity of academic interest in land use in Canada. A quick search of the legal literature on Canadian land use returns very little scholarship. In fact, there is virtually none. Even when taking into account Canada's tenfold smaller population than the Unites States, we do not have nearly the per capita academic power attuned to the regulation of land, particularly in the local government context. When I have organized panels with three of us (that is, three of the four legal academics in Canada who write regularly on land use issues), I joke that it is relatively inexpensive to assemble 75 percent of the academic land use expertise in Canada.

One could query whether this is due to an absence of land use conflicts. Big country, few people, lots of land over which to spread. However, given that more than 80 percent of the population is squished within 100 kilometres of our southern border with the United States and that the most populous regions - Greater Vancouver, Toronto and Montreal - are geographically constrained, that argument fails. Vancouver is bordered by mountains, ocean, and the Agricultural Land Reserve, a provincial zone that prohibits non-farm uses on Classes 1 to 5 soils (more on that this month - one of the longest standing, if not the oldest farmland protection regimes in North America and very successful in the rapidly urbanizing regions of British Columbia that are also squarely within an international land market) Toronto is constrained by Lake Ontario and the best farmland in Canada (not such a great farmland protection story there, but the Province of Ontario is working on it). Montreal is an island in the St. Lawrence River.

So if the argument that we are lacking land use conflicts in Canada fails, why is there so little legal scholarship in this area? Unfortunately I believe it has more to do with the regulation of law schools and the drastically fewer legal academics in general in Canada when compared to the United States. All of the law schools in Canada are accredited by the Federation of Canadian Law Societies and each individual provincial law society. Until recently, there had been no new law schools opened in Canada in over a decade. In British Columbia, although we receive over 1000 applications for 105 places at the University of Victoria, the B.C. government has capped our enrollment for as long as I can remember...but I digress.

Back to land use scholarship in Canada. Before reading any further, name one Canadian academic writing on land use in Canada... Good for you! I bet you thought of one of my favourite colleagues, a few of whom I profile in this post. Not only is their work brilliant but they are very interesting people with whom to spend an evening. If you ever have the pleasure of Mariana Valverde's company in Toronto or elsewhere be sure to ask about the Rob Ford era. Likewise, when in Vancouver it is a treat to discuss any aspect of the history of land use in that wonderful city with Doug Harris or Nick Blomley. I have chosen a few books and topic areas that have made a difference to me in my work and that will stand the test of time as classics in Canadian legal land use literature. In no particular order:

Mariana Valverde's newish book, Everday Law on the Street: City Governance and the Challenge of Diversity is the result of five years of empirical research in Toronto attending public meetings and meeting with those involved to evaluate how the City of Toronto employs various legal tools such as zoning and business licencing bylaws. Mariana (Center for Criminology and Sociolegal Studies, University of Toronto) shows how the aspiration for diversity as expressed through law and policy is often thwarted by local politics. A prolific and interdisciplinary legal, social and political theorist, Mariana's work on land use spans the empirical-theoretical spectrum and is truly awe inspiring.

A geographer by trade but not limited in expertise, Nick Blomley (Department of Geography, Simon Fraser University) is clearly one of the heavyweights of law and geography studies, and is well recognized as a founder and leader in Canada. His expansive view of the systemic impact of law on space is breathtaking. While prolific, I describe here two books that are essential reading. Nick's classic is Unsettling the City: Urban Land and the Politics of Property, a wide-ranging discussion of the geographies of property discussed through the particularities of the City of Vancouver. Nick is also a co-editor of the just-published The Expanding Spaces of Law: A Timely Legal Geography (with Irus Braverman, David Delaney and Alexandre Kedar, Stanford University Press) that canvasses the current field of legal geography. Although I am eagerly awaiting its arrival to my mail slot, apparently "[i]t guides scholars interested in the law-space-power nexus to underexplored empirical sites and to novel theoretical and disciplinary resources...[and] asks readers to think about the temporality and dynamism of legal spaces".

The only non-academic in this list, Pamela Blais (Principal, Metropole Consultants Ltd.) has sought to daylight the cost of development in the Greater Toronto region over the past decade. This task of defining the "cost of community services" is well established in U.S. communities but for some reason we still do not include it as a regular part of the project- or plan-specific analysis about the costs and benefits of land development in Canada. Pamela's book, Perverse Cities: Hidden Subsidies, Wonky Policy and Urban Sprawl is the only systematic Canadian analysis of the "market distortions and flawed policy that drive  sprawl". Pamela offers a sound critique of typical comprehensive and infrastructure planning, and provides direction for correcting market-oriented mis-incentives. 

Finally, arguably the fulcrum of land use scholarship and activity in Canada is Doug Harris (Faculty of Law, University of British Columbia). Doug was instrumental in hosting the Association for Law, Property and Society annual meeting in Vancouver, and the first time in Canada, earlier this year, and he provides us with deeply historical and thorough scholarship on two very different aspects of land use. His most well-known work is in the area of aboriginal law. Doug's first book, Fish, Law and Colonialism: The Legal Capture of Salmon in British Columbia, details the impact of fishing regulation on not only salmon as a fisheries resources but how it had an impact on the placement of communities and the expression of the aboriginal right to fish as part of governance, government and property in indigenous communities in B.C. His second book details the settlement of Indian Reserves and the impact of that process on aboriginal fishing rights in B.C. Called Landing Native Fisheries: Indian Reserves and Fishing Rights in British Columbia, 1849-1925, Doug "maps the connections between colonial land policy and law governing fisheries...rewrit[ing] the history of colonial dispossession in British Columbia".

Doug's other area of scholarship is urban land use and land titles, and we are eagerly awaiting a book on strata property and condominiums. Although no publication information is available, I will put in an advance plug because it will be the definitive statement in Canada on strata property and its host of issues for a long time to come. Doug started exploring strata through a project on the history of the rise of condos in Vancouver and is carrying on with the topic through a seminar at UBC. There are journal articles trickling through the academic scholarship pipeline, and I am just putting it out there that there are at least two of us who cannot wait for the book.

Looking back at this list, although I went on at length about how few legal academics there are in Canada who focus on land use I will boldly say that these four people and their scholarship will give you a good start in the Canadian realm and will encourage you to delve further into that polite land use arena that is Canada.

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