Law and Societies in the Canadian Prairie West, 1670–1940 (review)

The legal history of the Prairie West has been well served by Louis Knafla and Jonathan Swainger. Between the two of them they have edited or authored several books on the legal history of the prairies or Alberta. This collection is another fine example of their work. Containing pieces on the legal history of the Hudson's Bay Company (HBC), territorial, and provincial eras, the book covers several areas and methodologies of legal history. Like any collection, it has stronger and weaker chapters but is useful overall (I have used it successfully for two years in a course for law students).

The book opens with two broad chapters, a historiographical introduction by Knafla and a synthetic essay by Hamar Foster that exemplifies what is most and least successful of the volume as a whole. Ranging over the two hundred years of the HBC era, Foster offers an exciting argument about power and necessity in the building of legal relationships between Aboriginal people, fur traders, and the state. Pulling all of this together, Foster demonstrates the centrality of law to colonial prairie history in an energetic and engaging way. The essay reads very much like the address it once was, however, with many of the glosses and lacunae one expects of a keynote but not in an academic essay.

The next five essays deal with the period up to 1900. The earliest piece is Paul Nigol's discussion of labour control by HBC post factors in the eighteenth century. Nigol describes a discretion in the application of authority in governing workers that is evocative of recent work by Jerry Bannister on Newfoundland and Paul Craven on Canada in the same century. The article is a good introduction to workplace rules and resistance in the HBC. A parallel discretion in authority is described by Sidney Harring in a piece on Native people and state law in the late nineteenth century that covers ground similar to his earlier White Man's Law (1998). In both pieces the decision by those in power to ignore laws and rules at some time and pursue strict, violent enforcement at other times is a core issue, and helps to draw into question some of the hoary myths of the Canadian West's lawful past.

Russell Smandych's article about the legal theory governing Native people in Prairie law up to 1870 and Roderick Martin's chapter on the common law jurisprudence of territorial judges from 1887 to 1907 are among the most classically 'legal history' of the chapters. Smandych offers a broadly comparative chapter on the place of Aboriginal people in common law, in England and in the colonies. Martin provides a detailed analysis of all the reported cases of the territorial courts, tracing the judicial decision-making practices of the court's judges and the sources of law they used in their written decisions.

The remaining early essay, by Greg Marquis, compares the NWMP to the Royal Irish Constabulary, looking at questions such as force make-up, training, and the forces' relationship to those they policed. This piece is matched in the twentieth-century section with a chapter that compares the short-lived Alberta and Saskatchewan Provincial Police forces with the RCMP. Considering that some Albertan politicians are seeking a return to a provincial police force, Zhiqiu Lin and Augustine Brannigan's discussion is quite useful. Among other things, they demonstrate that, while the RCMP arrested many more people for Criminal Code offences, the provincial police forces were much more concerned with enforcing public order offences and provincial statutes. The chapter is an excellent starting ground for a discussion about police independence and the way in which laws are chosen to be enforced.

The last three pieces look at the development of water law in the prairie West, the regulation of public utilities in Calgary, and the legal response to the Sons of Freedom in British Columbia...