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1)Sources of Property
a)Aboriginal Legal Traditions

Richard Overstall "Encountering the Spirit in the Land: 'property' in a Kinship-Based Legal order

-Connection between the land and the chief – respect

  • Chief responsible for ensuring all the people in his House respect the spirit in the land and in all living things
  • So, legal title, but conveys responsibilities who holds land for the peoples w/ equitable interest in the land
  • Territorial boundaries usually outlined by territorial features (e.g., river, watershed, etc.)
  • Responsibility for a transgression of a boundary falls on the COMMUNITY opposed to just the individual (liability is assumed by the group)

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Daxgyet- marriage of particular lineage to a particular territory

"ownership of territory is a marriage of the Chief and the land. Each Chief has an ancestor who encountered and acknowledged the life of the land. From such encounters came power. The land, the plants, the animals and the people all have spirit - they must who respect. That is the basis of our law."

Chief responsible for ensuring that all people in his House respect the spirit in the land and in all living things. When a chief directs his House property and the laws are followed, then that original power can be recreated. That is the source of the Chief's authority." [88]

Adaawk–

statement of ownership = stories, songs, etc. of ppl

The people who have forgotten their history means they lost their ownership over the land

Yukw- (feast) legal form from which public statements are made about claims to ownership and territory (witnessed and recognized or not)

94 - jurisdiction is exercised through the feast

Withdraw of support will occur at the feast - that is, the person will not be acknowledged; those who continue to offend that laws and morality will befall on the extended family

DECENTRALIZED DECISION MAKING

Wilp- principle point of authority in Gitxsan society = House (opposed to democracy for example)

Difficulty in negotiations is that you have Chiefs representing houses (principle point of authority) bargaining with the state

-Principle point of legal authority

Clans- Wolf, Frog, Eagle, Fireweek - an amalgamation of Houses; the four clans correspond to the clans of neighboring communities

Provide points of intersection between first nations

Can't marry within your clan

Matrilinealsocieties inherit the land through mother

-But while your father is alive you have rights of access to your fathers clan

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CONCLUSION:

Primary laws- reciprocity, respect and balance

Secondary laws- rules that enable people to interpret the primary laws (rules governing the feast hall)

Strict Laws- laws that establish the basic relationships between clans -> constitutional in nature, being concerned with establishing and maintaining the legal framework of the society and its ability to maintain its obligations to the land

Gitxsan property requires inclusivity- idea of property arises only out of reciprocal interaction

Western property requires exclusivity- right to exclude = property

  • Debate as to whether property has any coherence
  • Property is about relationships between people in relation to things
  • Property and possession are not the same thing
  • Property: refers to a set of norms, endorsed by the state
  • Property contains in it, some kind of institutional structure to enforce the norms

John Borrows: Recovering Canada: The Resurgence of Indigenous Law

Exercise in translation - attempt to make Indigenous legal tradition intelligible to non-indigenous

Issue: do Nanabush's actions violate balance req by law btw humans & animals? Can't determine w/out other stories(laws)

  • Crow's vs. Humans after deer went to crow territory: battle; deer say they want to be there b/c they don't have respect
  • This becomes a recognizable legal form - treaty - agreement between parties with legal jurisdiction

Facts: Nanabush is the trickster - metaphor for common law (shape shifter); elders stress intersection of relationships bwt natural & human world (elders as source of authority)

Decision: Nanabush's actions have violated the treaty with the deer (Reciprocity is a big theme here)

  • Nbush: deer was vein - like the birch tree who was whipped by the pine tree for being vein doesn't apply in this context

Take this as a way of structuring the idea of property between people and the natural world (culturally constructed construct)

b)English Common Law

J.Cribbet & C.W. Johnson, Principles of the Law of Property-

  • The history of English law of property over the last 1000 years reveals a tension between:
  • Land a source of social stability hierarchy, as the principal device for reproducing a particular social order
  • Land as a commodity, fungible and alienable at will, as part of a market economy
  • 2 Concepts at the heart of property law
  1. Tenure- describes the 'quality' of the interest in land
  2. Defines the nature of the vertical relationships
  1. Estates- describes the 'quantity' of the interest in the land

What does it mean to hold an interest in the land?

  • Feudalism - both a system of government and a method of holding property
  • A state of society in which the main social bond is between lord and the man, a relation implying on the lord's part protection and defence; and on the man's part protection, service, and reverence, the service including service in arms. This personal relationship is inseparably invoked in a propriety relation, the tenure relationship
  • Presupposition that ALL INTERESTS IN LAND DEVOLVE FROM INTEREST FROM CROWN
  • Most commentaries on this subject start with William the Conqueror

Three points to reinforce about Feudalism: personal relationship between lord and tenant

  1. Land held 'of the Crown', or 'of a lord'; not owned outright. No absolute or 'allodial' title to the land
  2. Free Tenure: know in advance what you have to do to get the land (e.g., knight service)

a)Knight service - 40 days of armed service; most prestigious

b)Splendor - professions which include trades (serjeantry) in exchange for their personal services to the king (e.g., butchers, smiths)

c)Spirit - Religious tenure - Frankalmoin

d)Subsistence - free and common socage- land held in exchange for agriculture; was a category that did not fall w/in other; eventually becomes most common and only tenure

  1. Statutes of Tenures, 1660 - all non-religious free tenure except for socageabolished ; only kind that made it to Canada
  • Seisin- someone who had rights and responsibilities in relation to land - became a public spectacle, establishing the transfer of an interest in the land

Incidents of tenure - for a time, these were the principle sources of revenue for the crown

  • Homage and fealty: Promise to be loyal to the lord - sometimes requires fees
  • Aids: Financial support to the lord on specific occasions
  • Fines: Triggered monetary payment to lord
  • Relief and primer Seisin: Pass to heir, but must pay fees
  • Wardship: If transfer was to a minor - fee incurred
  • Marriage: By lord or by tenant - more fees
  • Customary Dues
  • Escheat and Forfeiture: e.g., when you were treasonous you forfeit your title to land
  1. Law and Equity Act, R.S.B.C. 1996, c. 253 (s.2)

Doctrine of Reception

1)Settled(no pre-existing law) English law gets transferred (so long as applicable in circumstances) or

2) If conquered(existing law in place) they use the already existing law (can be overturned by legislation; e.g., Quebec)

Escheat:

  • The only instance of tenure that remains relevant today - Statute of Wills, 1540 (gave tenants the right to distribute their property to whomever they wished upon death);
  • Intestacy:if you die without a will, the state takes over and divides your property accordingly
  • If no one close enough to get the property, the property escheats to the crown
  1. Escheat Act - section 1

2) Justifications for Property
  1. Lewis : “The Right to Private Property in a New Political Dispensation in South Africa” 1992

a) Economic Efficiency

-Private Property is best able to respond and allocate resources, incentive to preserve, costs = benefits

-Common property: costs are too spread, does not capture externalities

-3 characteristics for PP to maximize efficiency:

a)Defined rights, enforceable exclusive rights (clear boundaries)

b)Transferability

c)Universality

~ Exclusivity, transferability, & universality

  • Capital cannot be put to work because they need a registration system where private property interests can be represented and then transferred (e.g., mortgage transfer)
  • Argument goes, these economic systems are crucial to the development to the West
  • Possibility of development of resources
  • Connection between private property and the state (e.g., taxation, job force training)
  • Motives of people pushing for private property: job shortages (training via high school education)
  • Picking up on the theory that private ownership is a source of stability

b)Promotion of Freedom

Aristotle; idea that amongst civil and property rights requires individual to be independent. All other rights flow from this right

PP = fundamental right, provides platform for participation in free + democratic society

c)Personhood

Hegel; humans are containers of free will with the opportunity to exercise this free will. This requires some use of the physical world - us exercising our free will over materials gives us meaning in the world

  • Some things (e.g., wedding ring, home vs. shopping mall), are more important to some people more than others

We only become human when we exercise our free will

d)Labour

Locke; property arises by mixing ones labour with the material world which gives rise to a property interest - this power precedes the social contract

We claim from commons (effort/labour) to create our own property

  • Property interest precedes the state

e)Utilitarian

Bentham; maximize happiness, this can come from private property (i.e., wealth)

f)Discovery/Occupation/Possession

Gives right to a property interest. The discoverer has a better claim than someone who has not

Best one of these, have a property claim

3)Types of Property
Typology of Property System
State/Public Property / State or its agencies have the right to determine the rules of access and use, but a duty to manage publicly owned resources for public welfare. Individual members of the public do not necessarily have a right of access or use but they have a duty to observe access and use rules promulgated by controlling/managing agency
Private Property / Owners have the exclusive righto undertake socially acceptable uses to the exclusion of non-owners, and have a duty to refrain from unacceptable uses. Non-owners have a duty to refrain from preventing owners’ socially acceptable uses, but have the right to prevent or be compensated for socially unacceptable uses
Common Property / Each member of the ownership group has the right to access and use group-owned resource in accordance with access and use rules established collectively by the group, and a duty not to violate access and use rules. Each member also has the right to exclude non-members of the ownership group, but no right to exclude other members of the ownership group.
Nonproperty/open access / No individual has a duty to refrain from accessing and using a resource. No individual or group has the right to prevent any other individual or group from accessing and using the resource as they choose

R.Chambers - difference between real and personal property

  1. About relationships btwnppl w/ respect to things
  2. Tangible/intangible resources
  3. Property ≠ possession; property = an enforceable claim against others
  4. Freehold estates = things that are owned
  5. Leasehold estates = things possessed onlease
  6. Institutional authority to enforce
  7. * Right to exclude (point of contention)
  8. Single variable essentialism

Right to exclude = necessary and sufficient to define prop rights claim

  1. Multi variable essentialism

Right to exclude = necessary but not sufficient (also need further bundle of rights)

  1. Nominalism

Property = matter of social convention

Right to exclude = neither necessary nor sufficient

a)Yanner v. Eaton 1999

Interpretation of Queensland Fauna Act

Facts: Licence to harvest game = necessary; Yanner ≠ licence killed 2 crocs

Law: Native Title Act protects rights of aboriginal Australians despite general laws

Under Ausi Law pre-existing native title can be removed by Queen’s grant of property right if inconsistent

All fauna = property of the crownGrant of property extinguish native title claim?

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1)Gleeson (Nominalism- property=empty vessel)

-Not full, beneficial/absolute ownership

  1. Can’t be defined (migratory birds), indeterminacy
  2. Common law, no abs ownership of wild animals
  3. Purpose = royalty
  4. Not alike domestic animal

2)McHugh (dissent)

-Right to exclude = necessary (single/multi variable)

-Ordinary meaning (as opposed to statutory intent)

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b)Harrison v.Carswell 1976

Facts: picketing in parking lot; asked to leave; invited community to come in?

Issues: Mechanical deference to stare decisis? Can property right to exclude extend to places where community invited?

Dickson: Must distinguish case if we want to overturn (Peters Case – Can mall owner use trespass to evict picketer? –yes

Cannot distinguish, therefore bound by this decision

Role of Courts: apply law reasonably and objectively – judges never wholly free; this issue is better dealt with by Act

Laskin: distinguishes boycott vs strike – not like private property; No challenge to title, possession or privacy

This level of protection should not apply to a shopping mall (whole business model is to invite everyone in)

Labour disputes should be a limit on mall owner’s ability to sue for trespass – Employees’ rights trump owners’ rights

Ratios:The common law protects private property rights unconditionally unless there is an overriding statute.

-The owner of a shopping mall has sufficient control and possession of the common areas to invoke the remedies of trespass

-Owner who has granted general right of entry can still withdraw it from particular members of public, can invoke remedy of trespass (Ont. CA) control (SCC)

4)Novel Claims to Property
a)International News Service v. Associated Press (1918)

Facts: Newspapers competing; AP seeking injunction b/c:INS bribing AP employees; Inducing breach of bylaws

Issues: Is there property in published news? Right to exclude? – Yes, Form of expression may be protected by copyright, but ideas themselves (news) have no property once published BUT may be property interest btwn competitors “quasi-property”

~ news = all attributes of property necessary to make it unfair business practice for competition to profit from complainant’s labour

Reasoning: has all the attributes of property (that is, used its resources to implement property rights); precisely at the point that profit is to be reaped - Theory of Consideration

  • This labour is socially valuable, in that we would cut off the value in this - ECONOMIC ARGUMENT

DISSENT:Holmes

  • Property doesn't arise from value, although exchangeable. This does not mean you can prohibit the activities of others which would diminish the value
  • Property is a legal construct - property and law are born together and die together - Jeremy Bentham
  • Property is protecting the individual’s right to exclude (which Associated press is seeking)

Brandeis

  • If property is private, the right to exclude is absolute, if public, the right is qualified
  • The fact that a product of mind has cost its producer money and labour, and has a value for which others are willing to pay, is not sufficient to ensure to it this legal attribute of property

Ratios: Quasi- property:a property interest that applies only to certain parties (not the world), i.e., btw the two competitors

  • Principles of property play an imperative role in judicial decisions

b)Victoria Park Racing And Recreation Grounds Ltd. v Taylor (1934)

Facts: Fence around the grounds; D erects platform so can see racetrack; communicate to off track betting locations (reducing the amount of betting that was happening on the track)

Issues: Does reducing the value of something legitimize property rights ?Nuisance? Does Victoria park have a claim in property (via the right to exclude)?Does Victoria have property in "spectacle"?Reasonable enjoyment by D?– No, Injunction denied

Reasoning: Created something of value, value reduced by D - fact that damage occurs does not give rise to action

(Rich; Majority) Unprecedented form of nuisance ≠ nuisance; (Dixon: Diss): Apply princ of nuisance to new facts nuisance

No authority/case law for finding property in spectacle. Spectacle remains common property, cant be owned (dissent INS v. AP)

Ratios: no property in a spectacle;Nuisance:a tort in which the actions of one party prevents or limits (indirectly or directly) enjoyment ability of the land

NB: Broadcasting does have a Quasi-property interest, was possible to convey this case in the same way

c)Moore v. The Regents of the University of California 1990

Facts: Treatment; used cells to patent cell line;

Issues: 1) Dr in breach of fidutiary duty to patient? – Yes, no informed consent

2) Conversion(wrongful appropriations of someone’s property)

  1. Were the cells Moore’s property?If no, should the law be extended to include cells?

Conversion Issue

A)Majority:

  1. No precedent in existing property in existing cells;
  2. California statute says removed body parts should be disposed of
  3. Cell line is distinct from the cells (and protected by patent)

B)Dissent:

  1. No precedent against existing property in existing cells either
  2. Property = bundle of rights just b/c lost some control ≠ lost all rights
  3. Patent comes after the prior prop interest patent does not apply

Should law of conversion be extended? ~ Majority NO. Dissent YES.

A)Majority:

  1. Economic efficiency justification: if recognize prop int. in patient, not conducive to research in general (public interest)
  2. Not role of the courts (legislature)
  3. Plenty of remedies available to breach of fiduciary duty

B)Dissent:

  1. Surely researchers can get consent this would not be a problem
  2. Moral considerations (ie- bodily integrity) trump economic/public policy considerations
  3. Unjust enrichment

Ratios: Humans can be the subjects of property, but not the objects of property