Hamar Foster

Professor Foster joined the University of Victoria Faculty of Law in 1978. He was promoted to Professor in 1993 and was Associate Dean from 1998 to 2000. Before joining the Faculty of Law, he was a Commonwealth Scholar and Woodrow Wilson Fellow from 1970 to 1971, and served as a law clerk to the Chief Justice of British Columbia from 1974 to 1975. After articling, he along with two others, created the firm of Prowse, Williamson & Foster, where he remained until he joined the University of Victoria.

Professor Foster teaches in the areas of Legal Process, Property, Criminal Law, Evidence, Legal History and Aboriginal Law. His areas of research include comparative criminal law, the legal history of the fur trade, B.C. legal history and Aboriginal law.

On a personal note, Hamar Foster enjoys rowing with the Victoria City Rowing Club, and owns a sailboat.

Osgoode Society for Canadian Legal History Books

The Grand Experiment: Law and Legal Culture in British Settler Societies (Toronto: The Osgoode Society and the University of British Columbia Press, 2008), 832 pp. (co-edited with Andrew Buck and Benjamin Berger)

Essays in the History of Canadian Law, Vol. VI: British Columbia and the Yukon (Toronto: The Osgoode Society and the University of Toronto Press, 1995), 583 pp. (co-edited with John McLaren)

Chapters in Osgoode Society Books

‘Introduction: Does Law Matter? The New Colonial Legal History’ in Hamar Foster, Andrew Buck and Benjamin Berger, eds., The Grand Experiment: Law and Legal Culture in British Settler Societies (Toronto: The Osgoode Society and the University of British Columbia Press, 2008), pp. 1-14.

‘From Humble Prayers to Legal Demands: The Cowichan Petition of 1909 and the British Columbian Indian Land Question’ in Hamar Foster, Andrew Buck and Benjamin Berger, eds., The Grand Experiment: Law and Legal Culture in British Settler Societies (Toronto: The Osgoode Society and the University of British Columbia Press, 2008), pp. 240-267 (co-authored with Benjamin Berger)

’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, Volume VIII: In Honour of D.C.B. Risk (Toronto: The Osgoode Society and the University of Toronto Press, 1999), pp. 171-212.

‘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, Volume VI: British Columbia and the Yukon (Toronto: The Osgoode Society and the University of Toronto Press, 1995), pp. 28-86.

‘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, Volume VI: British Columbia and the Yukon (Toronto: University of Toronto Press and the Osgoode Society for Legal History, 1995) pp. 3-27 (co-authored with John McLaren).

‘”The Queen’s Law is Better than Yours”: International Homicide in Early British Columbia’ in Jim Phillips, Tina Loo and Susan Leithwaite, eds. Essays in the History of Canadian Law, Volume V: Crime and Criminal Justice (Toronto: The Osgoode Society, 1994), pp. 41-111.

Other Legal History Publications

“One Good Thing: Law, Elevator Etiquette and Aboriginal Rights Litigation in Canada” (2010), The Advocates’ Quarterly, Vol 37, 2010, 66-86 pp.

‘Appeals and the British Columbia Court of Appeal’ The Advocate, Vol 68, 2010, pp. 821-839.

‘For the Better Administration of Justice: The British Columbia Court of Appeal, 1910-2010’ BC Studies No. 162, 2009, pp. 5-24 (co-edited by John McLaren and Wes Pue)

“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), pp. 225-241.

“‘We Want a Strong Promise’: The Opposition to Indian Treaties in British Columbia, 1850-1990,” Native Studies Review, Vol 18, 2009, pp. 113-137.

Let Right be Done: Aboriginal Title, The Calder Case, and the Future of Indigenous Rights (Vancouver: University of British Columbia Press, 2007), 704 pp. (co-edited with Heather Raven and Jeremy Webber)

“We Are Not O’Meara’s Children: Law, Lawyers and the First Campaign for Aboriginal Title in British Columbia, 1908-1928” in Hamar Foster, Heather Raven and Jeremy Webber, eds., Let Right Be Done: Aboriginal Title, the Calder Case and the Future of Indigenous Rights (Vancouver: University of British Columbia Press, 2007), pp. 61-84.

“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: University of British Columbia Press, 2005), pp. 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 No. 138/139, 2003, pp. 51-84. (co-authored with Mr. Alan Grove).

“Litigation and the BC Treaty Process: Some Recent Cases in Historical Perspective,” in British Columbia Treaty Commission, Speaking Truth to Power III (British Columbia Treaty Commission, 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.]

‘It Goes Without Saying: Precedent and the Doctrine of Extinguishment by Implication in Delgamuukw v. The Queen’ the Advocate, Vol 49, 1999, pp. 341-357.

‘Fighting the King’s War: Harris Smallfence, Verbal Treaty Promises and the Conscription of Indian Men, 1944” University of British Columbia Law Review, Vol 33, 1999, pp. 53-74

‘Canada: ‘Indian Administration’ from the Royal Proclamation of 1763 to Constitutionally Entrenched Aboriginal Rights’ in Paul Havemann, ed., Indigenous Peoples’ Rights in Australia, Canada, and New Zealand (Auckland: Oxford University press, 1999), pp. 351-377.

‘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 University Press, 1999) pp. 351-377.

‘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: University of British Columbia Press, 1998), pp. 466-500.

‘Robert Beaven’ Dictionary of Canadian Biography (University of Toronto Press, 1998), Vol. XIV , pp. 47-49 (co-authored with Prof. Keith Ralston).

‘Gilbert Malcolm Sproat’ Dictionary of Canadian Biography (University of Toronto Press, 1998), Vol. XIV, pp. 962-964.

‘How Not to Draft Legislation: Indian Land Claims, Government Intransigence, and How Premier Walkem Nearly Sold the Farm in 1874’ the Advocate, Vol 46, 1998, pp. 411-420.

‘Honouring the Queen’s Flag: A Legal and Historical Perspective on the Nisga’a Treaty’ BC Studies No. 120, 1998, pp. 11-36

‘British Columbia: Legal Institutions in the Far West, from Contact to 1871’ Manitoba Law Journal, Vol 23, 1996, pp. 293-340.

“Roadblocks and Legal History, Part II: Aboriginal Title and Section 91(24),” the Advocate, Vol 54, 1996, pp. 531-546.

“Roadblocks and Legal History, Part I: Do Forgotten Cases Make Good Law” the Advocate, Vol 54, 1996, pp. 355-366.

‘Canadian Indians, Time and the Law’ Western Legal History, Vol 7, 1994, pp. 69-112.

‘George Anthony Walkem’ Dictionary of Canadian Biography (University of Toronto Press, 1994), Vol. XIII, pp. 1063-1066.

‘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 the Advocate, Vol 51, 1993, pp. 871-877 and in The Cambrian Law Review, Vol 25, 1994, pp. 127-135.

‘Looking behind the Masks: A Land Claims Discussion Paper for Researchers, Lawyers and Their Employers’ University of British Columbia Law Review, Vol 27, 1993, pp. 213-255

‘Killing Mr. John: Law and Jurisdiction at For Stikine, 1842-1846’ in John McLaren et al., eds., Law for the Elephant, Law for the Beaver: Essays in the Legal History of the North American West (R: CPRC 1992), pp.147-193.

“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) pp. 1-22 (co-authored with John McLaren).

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), 322 pp. (co edited with John McLaren and Chet Orloff)

‘Different Drummers, Different Drums: The Supreme Court of Canada, American Jurisprudence and the Continuing Revision of Criminal Law Under the Charter’ Ottawa Law Review, Vol 24, 1992, pp. 39-116 (co-authored with Robert Harvie)

‘Forgotten Arguments: Aboriginal Title and Sovereignty in Canada Jurisdiction Act Cases’ Manitoba Law Journal, Vol 1, (1991-1992), pp. 343-389.

‘Mutiny on the Beaver: Law and Authority in the Fur Trade Navy, 1835-1840’ in Dale Gibson and W. Wesley Pue, eds., Glimpses of Canadian Legal History (W: Legal Research Institute, 1991), pp.15-46

‘Ties that Bind? The Supreme Court of Canada, American Jurisprudence, and the Revision of Canadian Criminal Law Under the Charter’ Osgoode Hall Law Journal, Vol 28, 1990, pp. 729-788. (co-authored with Robert Harvie)

‘Long-Distance Justice: The Criminal Jurisdiction of Canadian Courts West of the Canadas’ The American Journal of Legal History, Vol 31, 1990, pp. 1-48.

‘Sins against the Great Spirit: The Law, the Hudson’s Bay Company and the Mackenzie’s River Murders, 1835-1839’ Criminal Justice History, Vol 11, 1990, pp. 23-76.

‘The Saanichton Bay Marina Case: Imperial Law, Colonial History and Competing Theories of Aboriginal Title’ University of British Columbia Law Review, Vol 23, 1989, pp. 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), pp. 447-501 (Appendix).

‘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), pp. 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), pp. 167-213.

‘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), pp. 308-364.

‘Trial by Jury: The Thirteenth- Century Crisis In Criminal Procedure’ University of British Columbia Law Review, Vol 13, 1979, pp. 280-297.