Hamar Foster, KC

• BA Honours – Queen's (1970)
• MA – Sussex  (1971)
• LLB – UBC (1974)
• MJur with distinction – Auckland (1989)

Publications: Legal History and Aboriginal Law

Books (edited collections):

• Peter Cook, Neil Vallance, John Lutz, Graham Brazier and Hamar Foster, ed.  To Share Not Surrender: Indigenous and Settler Visions of Treaty-Making in the Colonies of Vancouver Island and British Columbia, to be published by UBC Press in 2021. [This is a collection of essays generated by a three-day Symposium held February 24^th- 26^th, 2017, at the Songhees Nation Reserve in Victoria.]

• Hamar Foster, John McLaren and Wes Pue, ed. The British Columbia Court of Appeal, 1910-2010, BC Studies No. 162 (Summer 2009).

• Hamar Foster, Benjamin L. Berger and Andrew Buck, ed. The Grand Experiment: Law and Legal Culture in British Settler Societies (Vancouver: The Osgoode Society and UBC Press 2008)

• Hamar Foster, Heather Raven and Jeremy Webber, ed. Let Right Be Done: Aboriginal Title, the Calder Case and the Future of Indigenous Rights (Vancouver: UBC Press 2007).

• Hamar Foster and John McLaren, ed., Essays in the History of Canadian Law, Vol. VI: British Columbia and the Yukon (Toronto: University of Toronto Press and the Osgoode Society for Legal History 1995)

• John McLaren, Hamar Foster, and Chet Orloff, ed. Law for the Elephant, Law for the Beaver: Essays in the Legal History of the North American West (Regina: Canadian Plains Research Centre and Pasadena: Ninth Judicial Circuit Historical Society 1992).

Articles and Chapters:

• “Sharp as a Knife: Judge Begbie and Reconciliation,” in John Borrows and Kent McNeil, ed. Voicing Identity: Cultural Appropriation and Indigenous Issues (University of Toronto Press 2022) at 209-251.
• “The Imperial Law of Aboriginal Title at the Time of the Douglas Treaties,” in Land, First Nations, and James Douglas: Indigenous and Treaty Rights in the Colonies of Vancouver Island and British Columbia, 1849-1864, (UBC Press in 2021).
• “Two ‘White’ Perspectives on Indigenous Resistance: Emily Carr’s Klee Wyck, the RCMP and Title to the Kitwancool Valley in 1927,” Manitoba Law Journal, vol. 43, issue 1 (2020) at 1-58. [This was the 2018 DeLloyd Guth Lecture in Legal History.]
• A Man Like Greer,” The Advocate, Vol. 73, Part 3 (2020) at 347-349.
• "Amos Russ," in Vol. XVI of the Dictionary of Canadian Biography at http://www.biographi.ca/en/bio/russ_amos_16E.html (co-authored by Meagan Harvey). [This is an entry on Gedanst, possibly the first, and certainly one of the first, Haida to convert to Christianity].
• “The Royal Proclamation of 1763 in British Columbia: An Indigenous Magna Carta’s Chequered Canadian Career” in Catherine Macmillan and Charlotte Smith, ed. Challenges to Authority and the Recognition of Rights: From Magna Carta to Modernity (Cambridge: Cambridge UP 2018) at 269-295.
• “One Good Thing: Law and Elevator Etiquette in the Indian Territories,” in Myra Rutherdale, Kerry Abel, and P. Whitney Lackenbauer, ed. Roots of Entanglement: Essays in the History of Native-Newcomer Relations (Toronto: U. of T Press 2018) at 289-312. [This a republication of the essay published in 37 The Advocates’ Quarterly (May 2010) under a slightly different title).
• “Another Good Thing: Ross River Dena Council v. Canada in the Yukon Court of Appeal, Or: Indigenous Title, `Presentism’ in Law and History, and a Judge Begbie Puzzle Revisited” in 50 UBC Law Review (June 2017) at 293-319 (the Southin Lecture for 2016).
• "Appeals and the British Columbia Court of Appeal" (2010), 68 The Advocate at 821-839.
• "One Good Thing: Law, Elevator Etiquette and Aboriginal Rights Litigation in Canada" (2010), 37 The Advocates' Quarterly at 66-86.
• "For the Better Administration of Justice: The Court of Appeal for British Columbia, 1910-2010" in The British Columbia Court of Appeal, 1910-2010, BC Studies No. 162 (2009), above at 5-24 (co-authored by John McLaren).
• "If Your Life is a Leaf: Arthur Eugene O'Meara's Campaign for Aboriginal Justice," in Constance Backhouse and Wesley Pue, ed. The Promise and Perils of Law: Lawyers in Canadian History (Toronto: Irwin Press 2009) at 225-241.
• "'We Want a Strong Promise': The Opposition to Indian Treaties in British Columbia, 1850-1990," 18 Native Studies Review, No.1 at 113-137 (2009).
• "Does Law Matter? The New Colonial Legal History," introduction to Foster, Berger and Buck, ed. The Grand Experiment: Law and Legal Culture in British Settler Societies (2008), above at 1-12 (co-authored by Benjamin L. Berger and A.R. Buck).
• "From Humble Prayers to Legal Demands: The Cowichan Petition of 1909 and the British Columbia Indian Land Question" in Foster, Berger and Buck, ed. The Grand Experiment: Law and Legal Culture in British Settler Societies (2008), above at 240-267 (co-authored by Benjamin L. Berger).
• "We Are Not O'Meara's Children: Law, Lawyers and the First Campaign for Aboriginal Title in British Columbia, 1908-1928" in Foster, Raven and Webber, ed., Let Right Be Done: Aboriginal Title, the Calder Case and the Future of Indigenous Rights (2007), above at 61-84.
• Commentary on Henry Reynolds, "Reviving Indigenous Sovereignty?" in (2006) 6 Macquarrie Law Journal 15-17 (Australia).
• "Law and Necessity in Western Rupert's Land and Beyond, 1670-1870," in Louis A. Knafla and Jon Swainger, eds. Law and Societies in the Canadian Prairie West, 1670-1940 (Vancouver: UBC Press 2005) at 57-91.
• "Trespassers on the Soil'": United States v. Tom and a New Perspective on the Short History of Treaty Making in Nineteenth Century British Columbia," 138/139 BC Studies (2003) at 51-84 (co-authored by Mr. Alan Grove). This essay has been re-printed in Alexandra Harmon, ed. The Power of Promises: Rethinking Indian Treaties in the Pacific Northwest (Seattle: University of Washington Press 2008) (U.S.).
• "Litigation and the BC Treaty Process: Some Recent Cases in Historical Perspective," in British Columbia Treaty Commission, Speaking Truth to Power III (BCTC 2002).
• "Law, History and Aboriginal Title: Calder v. Attorney General of British Columbia ," in Canada , Confederation to Present (Chinook Multimedia, Inc., 2001). [Available on CD and on the Internet.]
• "Getting There," in British Columbia Treaty Commission/ Canada Law Commission, Speaking Truth to Power: A Treaty Forum (Canada 2001) at 165-180.
• "A Romance of the Lost: Tom MacInnes' Role in the History of the B.C. Indian Land Question", in G.B. Baker and J. Phillips, eds., Essays in the History of Canadian Law, Vol. VIII: In Honour of D.C.B. Risk (Osgoode Society for Canadian Legal History and U of T Press, 1999) at 171-212.
• "Canada : 'Indian Administration' from the Royal Proclamation of 1763 to Constitutionally Entrenched Aboriginal Rights", in Paul Havemann, ed. New Frontiers? First Nations' Rights in the Settler Dominions: Australia , Canada and New Zealand/Aotearoa 1975-1995 (Oxford U.P., 1999) at 351-377 (New Zealand).
• "Fighting the King's War: Harris Smallfence, Verbal Treaty Promises and the Conscription of Indian Men, 1944" (1999), 33 UBC Law Review 53-74 (co-authored by Mr. R. Scott Sheffield).
• "Honouring the Queen's Flag: A Legal and Historical Perspective on the Nisga'a Treaty," (1999), 120 BC Studies 11-35. [This essay was selected as one of the 40 "most influential and engaging" BC Studies essays to date, and was audio recorded to celebrate the 40th anniversary of BC Studies.]
• "Aboriginal Title and the Provincial Obligation to Respect It: Is Delgamuukw v. British Columbia 'Invented' Law?" (1998), 56 The Advocate , 221-231.
• "Indigenous Peoples and the Law: The Colonial Legacy in Australia , Canada , New Zealand and the United States ", in D. Johnston and G. Ferguson, eds. Asia Pacific Legal Development (Vancouver: UBC Press 1998) at 466-500.
• "Robert Beaven," Dictionary of Canadian Biography , Vol. XIV (U. of Toronto Press 1998) 47-49 (co-authored by Prof. Keith Ralston).
• "Gilbert Malcolm Sproat", Dictionary of Canadian Biography , Vol. XIV (U. of Toronto Press 1998) 962-964.
• "Roadblocks and Legal History, Part II: Aboriginal Title and Section 91(24)," (1996), 54 The Advocate 531-546.
• "Roadblocks and Legal History, Part I: Do Forgotten Cases Make Good Law?" (1996), 54 The Advocate 355-366.
• "British Columbia: Legal Institutions in the Far West, from Contact to 1871" (1996), 23 Manitoba Law Journal 293-340; also published in W. Pue and D. Guth, eds. Canada's Legal Inheritances (U. of Manitoba Press, 2001). This is a revised version of "English Law, British Columbia : Establishing Legal Institutions West of the Rockies ," C.L.H.P. Working Paper No. 92-3 ( U. of Manitoba ).
• "Hard Choices and Sharp Edges: The Legal History of British Columbia and the Yukon ," Introduction to Hamar Foster and John McLaren, eds., Essays in the History of Canadian Law, Vol. VI: British Columbia and the Yukon (Toronto: University of Toronto Press and the Osgoode Society for Legal History 1995) at 3-27 (co-authored by John McLaren).
• "Letting Go The Bone: The Idea of Indian Title in British Columbia , 1849-1927," in Hamar Foster and John McLaren, eds., Essays in the History of Canadian Law, Vol. VI: British Columbia and the Yukon (Toronto: University of Toronto Press and the Osgoode Society for Legal History 1995) 28-86.
• "The Queen's Law is Better than Yours: International Homicide in Early British Columbia" in J. Phillips et al ., eds. Essays in the History of Canadian Law: Crime and Criminal Justice, Vol. V (Toronto: 1994) 41-111.
• "Canadian Indians, Time and the Law" (1994), 7 Western Legal History , 69-112 (U.S.).
• "George Anthony Walkem," Dictionary of Canadian Biography , Vol. XIII (U. of T. Press 1994) 1063-1066.
• "Looking Behind the Masks: A Land Claims Discussion Paper for Researchers, Lawyers and their Employers" (1993), 27 University of British Columbia Law Review , 213-255 (co-authored by Mr. Alan Grove).
• "Conflict Resolution During the Fur Trade in the Canadian North West, 1803-1859," a paper prepared for the 1993 Congress of the Jean Bodin Society for Comparative Institutional History, Copenhagen and published in (1993), 51 The Advocate , 871-77 and in (1994), 25 The Cambrian Law Review 127-135 (U.K.). This article has also been published in Vol. LXIII of Recueils De La Société Jean Bodin Pour L'Histoire Comparative Des Institutions (Bruxelles, 1996) at 207-215 (Belgium).
• "Killing Mr. John: Law and Jurisdiction at Fort Stikine , 1842-46" in John McLaren, Hamar Foster, and Chet Orloff, eds. Law for the Elephant, Law for the Beaver: Essays in the Legal History of the North American West (Regina: Canadian Plains Research Centre and Pasadena: Ninth Judicial Circuit Historical Society 1992) at 147-193 (Canada and the U.S.).
• "Law for the Elephant, Law for the Beaver: Tracking the Beasts," Introduction to John McLaren, Hamar Foster, and Chet Orloff, eds. Law for the Elephant, Law for the Beaver: Essays in the Legal History of the North American West (Regina: Canadian Plains Research Centre and Pasadena: Ninth Judicial Circuit Historical Society 1992) at 1-22 (co-authored by John McLaren).
• "Forgotten Arguments: Indian Title and Sovereignty in Canada Jurisdiction Act Cases" (1992), 21 Manitoba Law Journal 343-389.
• "It Goes Without Saying: Precedent and the Doctrine of Extinguishment by Implication in Delgamuukw v. The Queen " (1991), 49 The Advocate 341-357. Also published, in revised form, in Frank Cassidy, ed. Aboriginal Title in British Columbia : Delgamuukw v. The Queen (Institute for Research and Public Policy, 1992), 133-160.
• "Mutiny on the Beaver: Law and Authority in the Fur Trade 'Navy' on the Northwest Coast , 1836-1839," (1991) 20 Manitoba Law Journal 15-45. Also published in Dale Gibson and W. Wesley Pue, eds., Glimpses of Canadian Legal History (Legal Research Institute 1991) at 15-46.
• "Long Distance Justice: The Criminal Jurisdiction of Canadian Courts West of the Canadas , 1763-1859," (1990) 34 American Journal of Legal History 1-48 (U.S.).
• "Sins Against the Great Spirit: The Law, the Hudson 's Bay Company, and the Mackenzie's River Murders, 1835-1839," (1989) 10 Criminal Justice History: An International Annual, 23-76.
• "The Saanichton Bay Marina Case: Imperial Law, Colonial History, and Competing Theories of Aboriginal Title," (1989), 23 University of British Columbia Law Review, 629-650.
• "Selected Provisions of the Indian Act Relating to Lands and Monies: A Historical Perspective," in The Report of the Commission of Inquiry Concerning Certain Matters Associated with the Westbank Indian Band ( Ottawa 1988), 447-501 (Appendix).
• "How Not to Draft Legislation: Indian Land Claims, Government Intransigence, and How Premier Walkem Nearly Sold the Farm in 1874" (1988), 46 The Advocate, 411-420.
• "Shooting the Elephant: Historians and the Problem of Frontier Lawlessness" in R. Eales, ed. The Political Context of Law: Essays in Legal History (Hambledon Press, 1987), 135-144 (U.K.).
• "The Struggle for the Supreme Court: Law and Politics in British Columbia 1871-1885" in Knafla, Louis A., ed. Law and Justice in a New Land: Essays in Western Canadian Legal History (Carswell 1986), 167-213.
• "Law Enforcement in Nineteenth Century British Columbia : A Brief and Comparative Overview" (1984), 63 BC Studies 3-28.
• "The Kamloops Outlaws and Commissions of Assize in Nineteenth Century British Columbia" in D. Flaherty, ed., Essays in the History of Canadian Law, Vol. II ( Toronto 1983), 308-364.

Other Publications (Criminal Law, Evidence, etc.)

Articles and Chapters:

• "Shocks and Balances: United States v. Burns, Fine-Tuning Canadian Extradition Law and the Future of the Death Penalty," (2004/05) 40 Gonzaga Law Review 293-327 (co-authored by Prof. R. Harvie, Saint Martin 's College, Washington) (U.S.).
• "Let the Yanks Do It? The Charter, the Criminal Law and Evidence on a 'Silver Platter'," (2001), 59 The Advocate 71-84. (Co-authored by Prof. R. Harvie, Saint Martin 's College, Washington).
• "Schreiber v. Canada in the Supreme Court: Keeping the Charter at Home - But Not For Long" (1998) 26 Manitoba Law Journal 133-39. (Co-authored by Prof. R. Harvie, Saint Martin 's College, Washington).
• "Unwarranted Behaviour: The Airbus Affair , United States Law and Searching Foreign Bank Accounts" (1998), 25 Manitoba Law Journal 421-447. (Co-authored by Prof. R. Harvie).
• "When the Constable Blunders: The Law of Police Interrogation in Canada and the United States, a Comparison," (1996), 19 Seattle University Law Review 497-537. (Co-authored by Prof. R. Harvie) (U.S.).
• "Whittled Away: The Converging Law of Police Interrogations in Canada and the United States," [1996] 39 Criminal Law Quarterly 112-122. (Co-authored by Prof. R. Harvie).
• "Different Drummers, Different Drums: The Supreme Court of Canada, American Jurisprudence and the Continuing Revision of Criminal Law Under the Charter" (1992), 24 Ottawa Law Journal 39-115. (Co-authored by Prof. R. Harvie).
• "Ties that Bind? The Supreme Court of Canada, American Jurisprudence and the Revision of Canadian Criminal Law Under the Charter" (1990), 28 Osgoode Hall Law Journal 729-788. (Co-authored by Prof. R. Harvie).
• "Historical Pre-conditions for Judicial Review: Some Criminal (and other) Thoughts about Courts, Legislators and the Charter," (1989), 47 The Advocate , 695-709.
• "Jurisdiction in Criminal Cases," Chap. 2 of Atrens, Burns and Taylor, eds. Criminal Procedure: Canadian Law and Practice ( Toronto 1982), plus 1986 supplement.
• "Eyewitness Testimony: Line-Up Evidence," in J.P. Taylor, ed. Recent Developments in the Law of Evidence ( Vancouver 1980), at 31-38.
• "Trial by Jury: The Thirteenth Century Crisis in Criminal Procedure" (1979), 13 UBC Law Review , 280-297.
• "Alcohol, Automobiles, and the Search for Mens Rea : Is an Honest Mistake a Good Defence?" (1977), 8 Manitoba Law Journal , 521-527.
• "Abuse of Rights - Civil Law - Legal Reasoning: Bradford v. Pickles Revisited" (1973), 8 UBC Law Review , 343-353.