Hamar Foster, QC

Professor


Hamar Foster

Hamar Foster, QC


Tel: 250-721-8178
Fax: 250-721-8146

Faculty of Law
University of Victoria
PO Box 1700, STN CSC
Victoria, BC  V8W 2Y2
Map

I joined the UVic Faculty of Law in 1978, was promoted to professor in 1993 and was associate dean from 1998 to 2000. I was a Commonwealth Scholar and Woodrow Wilson Fellow from 1970 to 1971, and served as law clerk to the Chief Justice of British Columbia from 1974 to 1975. After articling, I and two of my classmates established the firm of Prowse, Williamson & Foster, where I practiced law until 1978. At UVic, I continued to practice law part-time until the early 1990s, focusing primarily on criminal Legal Aid work. I have taught Legal Process, Property, Criminal Law, The Law of Evidence, Legal History and Aboriginal Law.

I have written extensively on comparative criminal law, the legal history of the fur trade, BC legal history and Aboriginal law. My most recent edited collections are: The British Columbia Court of Appeal, 1910-2010, a special issue of BC Studies (2009) co-edited by UVic Law colleague John McLaren and Wes Pue at UBC; The Grand Experiment: Law and Legal Culture in British Settler Societies (2008), co-edited by UVic Law colleague Benjamin Berger and A.L. Buck of Macquarie University in Australia; and Let Right Be Done: Aboriginal Title, the Calder Case, and the Future of Indigenous Rights (2007), co-edited by UVic Law colleagues Jeremy Webber and Heather Raven. A recent article was entitled "One Good Thing: Law, Elevator Etiquette and Aboriginal Rights Litigation in Canada", a reflection on my experiences testifying as an expert witness in Tsilhqot'in Nation v. BC, which was published in June 2010 in The Advocates' Quarterly.

I was a member of the Akitsiraq Law School faculty in Nunavut in 2002 and a resident Fellow at the Centre for Studies in Religion and Society from 2000 to 2001. I am a founding member and director of the International Society for the Promotion of the Public Interest of Lawyer Independence. I also row with the Victoria City Rowing Club and have an old but trusty sailboat.

  • 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):

  • 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:

  • "Amos Russ," to be published in Vol. XVI of the Dictionary of Canadian Biography [this is an entry on Gedanst, the first Haida to convert to Christianity].
  • "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.