Property Law

Property law is

 concerned with people and things →  body of rules and legal norms that structures relationships bw ppl with respect to things

 

→ Interaction bw ppl and rights

 

Property = bundle of rights

Right to exclude (RTE)

Fee simple; RTE at its fullest

The lower your possession the lower your ownership, lower your control, the lower your RTE

Blackstones opinion on property

sole despotic dominion (absolute private property ownership)  which one man claims and exercises over the external things of the world, in total exclusion of the right of any other individual in the universe.

we seem afraid to look back to the means by which it was acquired, as if fearful of some defect in our title; or at best we rest satisfied with the decision of the laws in our favour, without examining the reason or authority upon which those laws have been built.

tension between ownership and obligation that is the essence of property.

The ability to protect one’s property can promote human dignity, individual fulfillment, and social welfare. Yet the various tensions embedded in the property system require us to impose obligations on owners – obligations to use their property in a manner that is not inimical to the legitimate interests of others. Entitlement initially appears to abhor obligation, yet on reflection we can see that it requires it.

The Misconception of Property as a Thing

Property not a thing, but a title, claim or some right to use alone, with others, or to exclude some others (not just about ownership)  

→ need state to enforce

Need for Justificatory Theories

•  Legal right + moral right

• Justification as the basis for enforceability

• Note: keep in mind rights go with responsibilities

The most general point is that the institution—any institution—of property is always thought to need justification by some more basic human or social purpose… Property is not thought to be a right because it is an enforceable claim: it is an enforceable claim because it is thought to be a human right. This is simply another way of saying that any institution of property requires a justifying theory. The legal right must be grounded in a public belief that it is morally right. Property has always to be justified by something more basic; if it is not so justified, it does not for long remain an enforceable claim. If it is not justified, it does not remain property.

– CB MacPherson, “The Meaning of Property”

Justifications for Private Property

•  First Occupant

• Labour

• Personhood

•  Promotion of Freedom

• Utilitarian Objective

• Economic Objective

Carole Lewis, “The Right to Private Property in a New Political Dispensation in South Africa” (1992

The “standard incidents of ownership” of the “full owner”:

 right to possess

• right to use

• right to manage

• right to income of the thing

• right to capital

• right to security

• incident of transmissibility

• incident of absence of term

• duty to prevent harm

• liability to execution

• residuarity

•  Tony Honoré, “Ownership”

• A true/ full owner has ultimate title of thing → they can dispose of property/ transfer

→ all tied to right to exclude

Liberal conception of property

• Property defines the individual within a (democratic) society

• An ‘inviolable’ protection for the individual against the state

•  A right that all individuals have (equal rights to property?)

• However, this public/private distinction is not absolute as it relies on public declaration. To claim private right- the state must make a declaration (law)

Common law theory of property

Twentieth-century (modern) views of property

Capitalism

• Blackstone’s strong idea of property

• Twentieth-century (modern) views of property - more in favour of communal use 

"You see’, property will say, ‘now I am not even my own idea. I’m just a bundle of other concepts, a mere chimera of an entity. I’m just a quivering, wavering, normative phantasm, without any home, without anything to call my own but an album full of fading and tattered images of vitality and consequences and meaning. I’m depressed.’”

• Penner, The Idea of Property in Law (1997), p 1

• “…in common speech in the phrase the object of a man’s property, the words the object of are commonly left out”

• Bentham, An Introduction to the Principles of Morals (197

→  property as a placeholder (e.g. set of rights, set of claims, title etc) -> which then gives you control over thing

Capitalism

• Tangible exchange ≠ the rights to/in/over things

• The state as facilitator of exchange (expanded role of property)

The defining quality of (the right to) property is the

Right to exclude

•  “the right to exclude others is … the sine qua non. Give someone the right to exclude others from a valued resource, and you give them property. Deny someone the exclusion right and they do not have property.”

• Without RTE you can’t establish property

• Property as a (legal) norm: A norm capable of being enforced by some institutional power

• Property rights is more than mere possession

Right to Exclude and theories

Single variable essentialism:

•  Core element of property

Multiple-variable essentialism

•  One of many important features

• Predefined

 

 Nominalism

•  No fixed content/open-ended definition

• Socially contingent - blank slate

•  “a euphonious collection of letters which serves as a general term for the miscellany of equities  that persons hold in the commonwealth”

• Still includes RTE

There may be possible “joint” conceptions based on the above

Yanner v Eaton (1999) 166 ALR 258 (HCA)

 Issue: Clashing Rights

 

Justice Gleeson:

• The word “property” is often used to refer to something that belongs to another. But in the Fauna Act, as elsewhere in the law, “property” does not refer to a thing; it is a description of a legal relationship with a thing. It refers to a degree of power that is recognised in law as power permissibly exercised over the thing.

• “property... nothing more than a fiction expressive in legal shorthand of the importance to its people that a State have power to preserve and regulate the exploitation of an important resource...” →  Property in the fauna act is about how the state regulates things. Not talking about the thing but the relationship with thing. State becomes personified so it can exercise some authority in certain ways (that’s why it's property) not that the states owned it.

 (Nominal view)

•  “property … no more than the aggregate of the various rights of control by the Executive that the legislation created. … Those rights are less than the rights of full beneficial ownership. Taken as a whole, the effect of the Fauna Act was to establish a regime forbidding the taking or keeping of fauna except pursuant to licence granted by or under the Act…

In the present case, it could not be concluded that the statute granted full beneficial ownership or a possessory right over fauna to the Crown when it referred to ‘property’: this would lead to absurd results in the case of migratory birds, for example. Rather, as the purpose of the statute was to create a paid licensing system, the reference to property was merely ‘a fiction expressive in legal shorthand of the importance to its people that a State have power to preserve and regulate the exploitation of an important resource’ ([28]). The reference to property in the statute was a mere licensing right.

Justice McHugh (dissenting): (Single Variable)

•  Section 7 of the [Fauna Conservation] Act reverses the common law rules and vests all rights of catching, killing and appropriating fauna in Queensland in the Crown. It therefore gives to the Crown the sole right of catching, killing and appropriating fauna in Queensland together with the right to exclude every other person from catching, killing and appropriating that fauna. If the term “property” has any recognizable meaning in the Act,= it must at least have conferred those rights on the Crown and taken them away from every other person once the Act was proclaimed. →  full control over the thing belongs to the state

•  Whatever else property may mean in a particular context, it describes a relationship between owner and object by reference to the power of the owner to deal with the object to the exclusion of all others, except a joint owner

 How do these descriptions of “property” in Yanner vs Eaton fit within Merill’s schools of thought on property? (RTE)

•  Justice Gleeson: “property... nothing more than a fiction expressive in legal

shorthand of the importance to its people that a State have power to preserve and regulate the exploitation of an important resource...”

 → Socially contingent - nominal

 

•  Justice McHugh: “Whatever else property may mean in a particular context, it describes a relationship between owner and object by reference to the power of the owner to deal with the object to the exclusion of all others, except a joint owner.”- Single variable

“The Principle of Sharing and the Shadow of Canadian Property Law” Sarah Morales and Brian Thom

Property can be understood as “relational sets of rights distributed among individuals and groups in ways that make existing property regimes and claims specific, limited and, frequently, shared.”  This understanding of property as a distribution of relational rights arguably captures Island Hul’qumi’num peoples’ understandings of property. However, issues arise when “our conceptions of property are premised on the drawing of bright lines,” because the creation of those boundaries “entails the conversion of social relations into a set of discrete bounded things.

 Race as property/property as race

•  The right to exclude → slavery/conquest

•  Racial othering + unprivileged class

  • Right of one to exclude the other from “owning” property

  •  Racial ordering by law

  • Race + law → unlocked possible configurations of property “… the property of being white”

  • Possession → first important step to having property was (presumably) white Absence of whiteness supported the dispossession of property → Not seen as persons = can't own property

    Property as an extension of state sovereignty and a racialization of statehood through property: 

   The great end, for which men entered into society, was to secure their property. That right is preserved, sacred, and incommunicable in all instances, where it has not been taken away or abridged by some public law for the good of the whole… By the laws of England, every invasion of private property, be it ever so minute, is a trespass. No man can set his foot upon my ground without my licence, but he is liable to an action, though the damage be nothing; which is proved by every declaration in trespass, where the defendant is called upon to answer for xband even treading upon the soil.

  Entick v Carrington [1765] EWHC KB J98

   

  Property= tension of how state exercises sovereignty →  racialized view of statehood

Harrison v Carswell [1976] 2 SCR 200 and precedent

R v Peters:  Did the learned Judges in appeal err in law in determining that the owner of the property had sufficient possession of the shopping plaza sidewalk to be capable of availing itself of the remedy for trespass under section 1(1) of the Petty Trespass Act?

 

Trespass?

• “Any form of possession, so long as it is clear and exclusive and exercised with the intention to possess, is sufficient to support an action of trespass against a wrongdoer”

• 38 Halsbury, 3rd ed., p. 743, para, 1213

 

 Role of precedent

Dickson J: There has been no suggestion that Peters was wrongly decided; therefore, I would think it must be regarded as controlling unless it can be properly distinguished from the case at bar → woman picketing at sidewalk amounts to trespass

Dissent

Laskin J:   This Court, above all others in this country, cannot be simply mechanistic about previous decisions, whatever be the respect it should pay to such decisions. What we would be doing here, if we were to say that the Peters case, because it was so recently decided, has concluded the present case for us, would be to take merely one side of a debateable issue and say that it concludes the debate without the need to hear the other side

  

 Balancing role of the Supreme Court of Canada?

•  By extension, other courts?

•  Laskin J: …whether this Court has a balancing role to play, without yielding place to the Legislature, where an ancient doctrine, in this case trespass, is invoked in a new setting to suppress a lawful activity supported by legislation and by a well- understood legislative policy.

 

Dickson J:

•  The submission that this Court should weigh and determine the respective values to society of the right to property and the right to picket raises important and difficult political and socio-economic issues, the resolution of which must, by their very nature, be arbitrary and embody personal economic and social beliefs Stories about property underlie the law of property. Indeed, it is the stories told about property that provide a justifying framework for the institution  of property. This is what C.B. MacPherson means when, in the excerpt from “The Meaning of Property” included at the beginning of this book, he argues that “property requires a justifying theory. The legal right must be grounded in a public belief that it is morally right.”

John Locke’s “labour theory

that by mixing one’s labour (which one owns) with the material world, one can claim, subject to certain provisions, that portion of the material world from the commons as private property.

Labour Relations Code, RSBC 1996, c 244

6 No action or proceeding may be brought for:

• (a) petty trespass to land to which a member of the public ordinarily has access,

• (b) interference with contractual relations, or

• (c) interference with the trade, business or employment of another person resulting in

a reduction in trade or business, impairment of business opportunity or other

economic loss

Arising out of strikes, lockouts or picketing permitted under this Code or attempts to persuade employees to join a trade union made at or near but outside entrances and exits to an employer's workplace

Courts are saying that if a place is sufficiently public in character, then we shouldn't constitute it as private property. 

First Occupant justifcaiton

•  based on the right of the discoverer of property to take control of it, and to dispose of it

  • the theory of occupancy does not account for acquisition by transfer or by inheritance.

\The idea of ‘first in time’

Criticisms:

• Very few assets are now simply there, ownerless and waiting to be taken

•  So, this does not justify the continuation of private property in contemporary times

Further, once you recognize that first occupancy provides a basis for property, there appears a disturbing tendency not to see the present occupiers/or not to recognize them as occupiers (as in the European encounter with first nations

Not likely to succeed because property can change hands. 

Labour theory (of property)

• John Locke/A version ‘the of survival of the fittest’ approach

• Everything is common until you employ some level of labour and then it becomes private to you. *Common referring to “commons”

 Criticisms:

• It does not justify gains to capital, i.e. investors’ gains

•  Investors do not produce their gains by working; their gains are produced by the work of others

This justification from labour, has two contemporary limitations in our modern property regime:

• Labour creates a right to its fruits “at least where there is enough, and as good, left in common for others

•  Labour creates a right to only some of its fruits: to “[a]s much as anyone can make use of to any advantage of life before it spoils

Deployment of eurocentric concept  in imperial context 

Right to property - individual rights to be free -

• Some philosophers have tried to deduce the right to property from the individual's right to act as a free person, for the ability to be free is dependent on the opportunities made possible by private property.

  • it does not justify private property in resources required by the public

• Broad idea of liberty

•  The job of justifying property in this broadest sense is therefore the job of justifying liberty

– Jan Naverson, “Liberty, Property, and Welfare Rights: Brettschneider’s Argument” (2013), p. 202

Criticism:

•  Does not justify recognizing private property in great masses of assets

•  Does not justify the power to bequeath

• (Philosophically) mutual responsibility and care may trump freedom (as property)

Justificaitons: personhood

• “The role these classes of things play in our self-constitution and expression.”

• property is that which is centrally formative of the self,” allowing “individual realize their true selves… by engaging in a property relationship with something external.”

• “property is the first embodiment of freedom.' – Margaret Jane Radin, Property and Personhood

  • Being able to express oneself by holding property

Criticisms

•  May justify possession but not ownership

•  Does not work for non-sentimental assets such as share portfolios

• Works best for people’s homes and other sentimental assets such as family heirlooms

People don't own property because of personal attachment, sometimes it’s for power etc - not always about sentimental attachment. People may enjoy personal property for personal identification vs some people enjoy for use

• The economic theory in favour of private property claims that maximum productivity is promoted by it

• that the history of agriculture and industry show that there is a strong prima facie case for the view that greater productivity prevails under individual ownership.

• Flaws with this approach too

• (social) institution of property as of the use of scarce resources

• Tragedy of the Commons: resources open to free public consumption will be over-consumed, leading to scarcity for all

 Criticism:

•  Some economic theorists believe private property would result in an optimal allocation of assets (each asset allocated to the person to whom its value is highest), as that person will be willing to pay more than anyone else for that asset, leading its current owner to sell to that person

• Possible inefficient allocation of assets

• Private property can lead to the elimination of precious resources as owners prefer near-term profit to all other considerations

• Private property can be fragmented, leading to coordination problems, leading to suboptimal economic results

•  There is no evidence that private property leads to an optimal allocation of assets

• For example, the extreme inequality we have in the US and Canada cannot be optimal

 There are examples of assets being improved because of open use

• Utilitarian theories

• maintain that the total, or average, happiness of society will be greater if resources, particularly the means of production, are owned and controlled by individuals (an argument closely allied with the economic argument sketched above).

• The principal difficulties with utilitarian arguments are that they take human interests and desires as given, assuming that the fulfilment of a desire has a positive value and that they are quantifia Property should maximize net utility.

Criticism:

• Private property tends to be shaped by inequality → so there is great reason to doubt if it provides the greatest good to the greatest number, compared with other economic systems

• The statement that private property provides the greatest good to the greatest number of people, compared with other economic systems, is unproven

• Taking from ppl to redistribute → justifiable? ble.

• Waldrons rights based approach to property :

• Waldron's definition of a rights-based argument is “one showing that an individual interest considered in itself is sufficiently important from a moral point of view to justify holding people to be under a duty to promote it”.

• Considers what individual interests are served by pp and whether these interests are so important from a moral perspective that they justify their enforcement and protection by government.

• To achieve his aim, Waldron analyses two lines of rights-based argument: the one is associated with Locke and the libertarian philosopher Robert Nozick; the other with Hegel.

•   both approaches hold that individuals have an interest in owning things which is sufficiently important to command respect and to restrain governmental action. The Hegelian line argues that this is a basic human interest which everyone has, while on the Lockean approach, the interest is one which people have only because of what they have done, or have acquired from someone else. The Lockean right to property is a “special right”, whereas the Hegelian right is “general”. A special right is one arising from a transaction between individuals, or from a particular relationship, and the corresponding obligation is limited to the other party to the transaction or relationship. A general right, on the other hand, is a moral right which avails against everyone in the sense that it is protected against interference by others.

  • Waldron argues that the core of John Locke's theory of property is a special-right-based argument for private property.His central thesis is that by labouring on material resources in a state of nature, a person acquires an interest in them which is important enough, from a moral point of view, to support the principle that other people, and governments, have a duty not to deprive him of the resources without his consent. But people generally have no right to acquire such an interest. On the Lockean approach, there is no general right to appropriate, or to be given the opportunity to do so. However, Locke acknowledged a general right to subsistence where an individual could not appropriate resources for himself. The right to subsistence, together with special rights arising from appropriation, would lead, argued Locke, to a prosperous society, albeit an unequal one

  • Locke's arguments in justification of an entitlement over a resource created by mixing one's labour with it were that private appropriation was the only way to meet human needs; and that the mixing of one's labour in itself gives rise to entitlement. Waldron points out that the latter argument is incoherent, and that the former is not true. Locke's justification of the institution of private property thus fails.

  • Nobody has any right to hold resources as private property unless rights have been acquired by particular people over particular resources by particular actions or transactions. A system of positive law would determine which actions or transactions were able to give rise to rights of use and control. Nozick concedes no other rights, not even one to subsistence. Nor does he attempt any moral, social or economic justification for the right of property that arises in this way. Waldron argues that a theory which makes no allowance for subsistence, and protects only those rights acquired in accordance with “a principle of justice” is not tenable.

Nisga'a Final Agreement, 27 April 1999 Nisga'a Nation, Canada, British ColumbiaChapter 3: Ownership of Nisga'a Lands

the Nisga'a Nation owns Nisga'a Lands in fee simple, being the largest estate known in law. This estate is not subject to any condition, proviso, restriction, exception, or reservation set out in the Land Act, or any comparable limitation under any federal or provincial law. No estate or interest in Nisga'a Lands can be expropriated except as permitted by, and in accordance with, this Agreement.”

In accordance with this Agreement, the Nisga'a Constitution, and Nisga'a law, the Nisga'a Nation may:

1.  dispose of the whole of its estate in fee simple in any parcel of Nisga'a Lands to any person; and

2. from the whole of its estate in fee simple, or its interest, in any parcel of Nisga'a Lands, create, or dispose of any lesser estate or interest to any person, including rights of way and covenants similar to those in sections 218 and 219 of the Land Title Act

without the consent of Canada or British Columbia.

Indigenous interests in land recognized in Canadian law

 Indian Reserves

• Aboriginal Title Lands

• Treaty Lands

Nisga’a Final Agreement

Full control over how to use land and resources in Nisga’a Lands

Most important thing in land ownership is what you can do with residuary interest (being able to pass on land) –  can do fee simple.  This wasn’t part of indigenous land holding until western contact. It was only communal. Never “owned” land for self but held land as part of community

• . On the effective date, the Nisga’a Nation owns Nisga’a Lands in fee simple, being the largest estate known in law. This estate is not subject to any condition, proviso, restriction, exception, or reservation set out in the Land Act, or any comparable limitation under any federal or provincial law.

  • In principle what the crown has in terms of interest in land, is what individuals begging to have in Nisga community 

  • Nobody can impose any restriction or reservation etc even in federal or provincial law → Land CANT be taken or EXPROPRIATED except in accordance to final agreement 

  • If you’re a Nisga member you can be given land → title

• No estate or interest in Nisga’a Lands can be expropriated except as permitted by, and in accordance with, this Agreement

Nisga’a Lands Designation Act, NLSGR 2000/14

The Nisga’a Lands described

• (a) in Schedule A are designated as the Nisga’a Village Lands of the Nisga’a Village of New Aiyansh,

• (b) In Schedule B are designated as the Nisga’a Village Lands of the Nisga’a Village of Gitwinksihlkw …

Nisga’a Village Entitlement Act, NLSGR 2000/13

(1) In this Act…

“eligible recipient” means, in respect of a Nisga’a Village entitlement, a person who

•  (i) is a Nisga’a citizen, an

•  (ii) immediately before the effective date, was a member of the Indian band to which the particular

Nisga’a Village is a successor…

•  (2) After the effective date, a Nisga’a Village may grant to an eligible recipient a Nisga’a Village entitlement for land within its Nisga’a Village lands in which the Village owns the land in fee simple…

• (3) A person registered under the Nisga’a Land Title Act as the holder of a Nisga’a Village entitlement may transfer the Nisga’a Village entitlement to an eligible recipient…

• (4) No person may acquire a Nisga’a Village entitlement by disposition under a will… except an eligible recipient…

Nisga’a Landholding Transition Act, NLSGR 2009/02 2 (1) Subject to section 4, if

•  a Nisga’a Village is registered as the owner of the estate in fee simple to a parcel of Nisga’a Lands, and

• a Nisga’a citizen is registered as the holder of an entitlement to the parcel

• the Nisga’a Village Government of the Nisga’a Village may… offer the estate in fee simple to the parcel to the Nisga’a citizen, without charge to the Nisga’a citizen (to reflect Indigenous values)

Register entitlement →  register as fee simple

• ) Subject to section 4, if

•  a. a Nisga’a Village is registered as the owner of the estate in fee simple to a parcel of Nisga’a Lands, and

•  b. a Nisga’a citizen is registered as the holder of an entitlement to the parcel

 the Nisga’a Village Government of the Nisga’a Village may… offer the estate in fee simple to the parcel to the Nisga’a citizen, without charge to the Nisga’a citizen…

•  4. The estate in fee simple to a parcel of Nisga’a Lands may, under section 2(1), be offered to a Nisga’a citizen who is the registered holder of an entitlement to a parcel only if

  • a. the entitlement is not subject to a registered mortgage

  •  b. the parcel is not greater than 0.2 hectares in area, and

  •  c. the principal use of the parcel permitted under a zoning law enacted by the Nisga’a Village… is residential
    
    

Issues with Nisga agreement

Idea behind the agreement was to return land to the Nisga people. The Nisga govt was supposed to administer land for the benefit of people →   one of the benefits was that Nisga citizens have a place to live. The restriction was that only Nisga citizens can hold fee simple YET  there were things happening around Indigenous land reform → justifications of private property/ property rights (communal land was being divided up into diff fee simple lands for citizens) 

Justification: economic theories on use of property 

Soto: to drive economic use you need to formalize titling → divide up what was common and label it → will become  a way of trading, use for security

Nisga couldn’t sell it outright, they could lease it, mortgage/ But if they were foreclosed on, they would lose  feesimple.

Non Nisga couldn’t outright buy but could lend money etc.   Non Nisga could rent it out (for residential purposes).  

Tsawwassen First Nation Land Act, 2009

•  16 (1) Only the following persons are eligible to apply under section 19 (1) for a Tsawwassen Fee Simple Interest in

Tsawwassen Public Lands:

• (a) a Tsawwassen Member of the age of 19 years or over;

• (b) a person acting as trustee or in another official capacity for a Tsawwassen Member

• (i) under the age of 19 years, or

• (ii) incapable of managing his or her affairs;

• (c) a Tsawwassen Public Institution …

• (d) a Tsawwassen Corporation…

Prevented transfer of feesimple. Non-indigenous could only live there on lease. Land couldn’t be sold. 

•  17(1) A person who holds a Tsawwassen Fee Simple Interest must not transfer of that interest to a person other than

• (a) a person who under section 16 may hold such an interest, or

• (b) Tsawwassen First Nation

• (2) A disposition of a Tsawwassen Fee Simple Interest is void if made to a person other than one referred to in subsection (1) (a) or to Tsawwassen First Nation.

• (3) Nothing contained in subsection (1) or (2) will prevent any person who holds a Tsawwassen Fee Simple Interest in any Tsawwassen Lands in accordance with this Act from disposing of any interests in such Tsawwassen Lands, including but not limited to the following:

• (a) a mortgage;

• (b) a lease;

• (c) a right of way;

• (d) a statutory right of way;

• (e) an easement;

• (f) a licence of occupation;

• (g) a permit of occupation.

*The kinds of things you can do on Tswawwassen land are more restricted 

e numerus clausus (

The numerus clausus (Latin for "closed number") principle dictates that property rights are restricted to a fixed, finite list of standard legal forms recognized by the legal system

Novel claims to ‘real’ property are constrained by numerus clausus which limits (but does not fully close) the Court’s capacity to create new property entitlements

• Keppel v Bailey limited basket of property interests as “great detriment would arise and much confusion of rights if parties were allowed to invent new modes of holding and enjoying real property” 

• Economic theory → property allows for standardization due to small # of prop interest

• Tragedy of anticommons: when too many people have property rights in one thing, nobody can use it because cooperation breaks down and wealth decreases. Usually, private ownership creates wealth but too much ownership has the opposite effect – it leads to wasteful underuse and inefficiency

• N.B. Harris says the ‘last’ equitable property interest after Keppel comes as the restrictive covenant in Tulk

• Ziff: Once a property interest is created it’s very hard to undo

  • Property rights are difficult to abolish. Don't want to make one, then have to remove

  • Smith : property is useful because it’s standardized

  • Recognition of a limited number and carefully regulated kinds of interests - a numerous clausus policy - has slowed down the process of judicial reform of property law

  • Limiting possible kinds of rights reduces information costs

  • Minimizes potential anti-commons problem:

  • Recognition of too many kinds of rights can fracture property holdings so significantly that efficient exchanges are prevented by holdouts, or pieces of property become too small

“[P]roperty rights … [are] comprised of a stable, rigid or fixed set of entitlements. A party wishing to demonstrate that a right is proprietary must … show that the interest in question fits … into the appropriate legal box”

When there are novel property claims, there is criteria that has to be met

However, novel sources of proprietary interests are still recognized with changing technological and economic contex t→ 

Moore v Uni of Cali

Moore claims that he still had ownership of his cells to direct their use. Claims that the defendant's unauthorized use of his cells constitutes a conversion 

Conversion

•   is an intentional tort where someone wrongfully takes, uses, or keeps another person’s personal property so completely that it deprives the owner of its use

• a tort that protects against interference with possessory and ownership interests in personal property.

Moores claim under existing law

To Claim Conversion

• You need to actual have right of possession or ownership, title etc to claim conversion and need to establish that defendant actually interfered with ownership/ right

• Moore: didn’t expect to continue possessing them so did he still retain ownership interest in them? → 

1. No judicial decision supports Moore's claim

2. Cali statutory laws limit continuing interest of a patient in excised cells: say they have to be disposed of after scientific use → restrict how they may be used and call for their destruction → eliminates many of the rights ordinarily attached to property 

3. Subjects of Regents patent (cell line and products) cannot be Moore's property: patented cell line is both factually and legally distinct from the cells taken in Moore's  body. Patent rewards inventive effort → cell line is product of invention 

Nothing to support that a person retains sufficient interest in excised cells to support a cause of action for conversion 

→ Next Moore tried to argue unwanted publicity however, the results of patent were lymphokine (as well as the genetic material required to make it) which are the same in every human 

Liability based upon existing disclosure obligations, rather than an unprecedented extension of the conversion theory, protects patients' rights of privacy and autonomy without unnecessarily hindering research.

moore Case brief

Facts: 

• Moore got medical treatment where the extracted cell from him

• Cells were used for lucrative research without his consent 

• Suing for conversion 

• Issue: whether Moore had cause of action for  conversion for his cells. / whether there is a property right n excised tissue 

• Held: (Paneli J.) The hospital patient does not have a property interest in excised cells and bodily tissues.

• Reasoning: would be a disincentive for furthering research/industry and would make every cell line ‘a battleground for litigation’ (economic/labour theory

Ratio:

•  Use of cells does not constitute conversion  

• That no action based on a theory of conversion may be prosecuted where the subject matter of the allegation are excised cells taken from Plaintiff in the course of a medical treatment

Analysis:    

C: we hold that the allegations of Moore's third amended complaint state a cause of action for breach of fiduciary duty or lack of informed consent, but not conversion

Dissent: 

1. This court should be able to rule that its conversion if the facts say it is

2. RE: The stats that limit property rights. Property rights are often limited (e.g. even in land), and that doesn’t mean its not your property

Lam v UBC

The issue at trial and on appeal was whether frozen human sperm is “property” for the purposes of the WRA.  The trial judge held that it was and that the appellant was precluded from relying on the exclusion clause.

 

• Human sperm stored for future procreative use constitutes "property" under provincial warehouse legislation, meaning a facility storing it cannot contractually exempt itself from liability for negligence

s. 2(4) of WRA:

A warehouser may insert in a receipt issued by the warehouser any other term or condition that

(a)   is not contrary to any provision of this Act, and

(b)   does not impair the warehouser’s obligation to exercise the care and diligence in regard to the goods as a careful and vigilant owner of similar goods would exercise in the custody of them in similar circumstances.

→ The parties agreed to have the following sub-issue tried: Is the [appellant] precluded from relying upon the exclusion clause in the Agreement as against the Class members by virtue of the Warehouse Receipt Act, R.S.B.C. 1996, c. 481 (the “WRA”)?

[7]           The trial judge answered the question “yes”.

Is the WRA applicable to the Sperm Banking Facility Agreement (the “Agreement”)? 

The first issue raises a number of sub-issues for possible consideration including:

•   Are sperm/sperm samples “goods” as that term is defined in the WRA?

•   Do principles of statutory interpretation preclude the WRA’s applicability?

•  Is the defendant [appellant], as an operator of the Andrology Lab, “a warehouser” as that term is defined in the WRA?

• Were the Agreements issued by the defendant [appellant] “warehouse receipts” as that term is defined in the WRA?

•   If the WRA applies, does it preclude the enforceability of the exclusion clause in the Agreement?

Property as a gateway

What kind of things should be called/ amenable to being called pirate property?

• Capable of private ownership

The label property is a gateway which keeps some things in and others out.

• It's important for what it keeps out as for what it lets in.

• Gateway/ gatekeeping what falls under property

What then should make its way through the door and into the room of property? 

Lecture notes on Moore

1. Breach of fiduciary duty? (in personam → The judgment applies only to the parties named in the lawsuit and creates personal liability.)

2.  Conversion? (in rem → decision will have implications in other cases)

i. What is the current state of the law of conversion?

• Precedent  (none to say  cells are your property)

• Property (State statues says you cant keep them)

• Patent : (not the same cells, something has happened beyond them)

Should law of conversion be extended

• Research

• Legislature vs courts

• Fiduciary duty

• Panelli J (for the majority): No control over excised cells. If they gave property interest to these cells then it would give them property interests in cell lines

• Mosk J (for the minority in dissent):

• the concept of property is broad + abstract (bundle of rights)

•  Even where the law diminishes this bundle, “what remains is still deemed in law to be a protectible property interest

Limit on the extent of property rights

•  Courts have an implied restriction not to add to the category at will

•  Numerus clausus principle (is a foundational rule in property law that restricts the types of property rights courts will recognize to a fixed, standardized list)

Indigenous Legal Orders and Property

Te Urewera Act: 

• Community beyond the human world

—> Morales and Thom, “The Principle of Sharing”

• Land is bounded to more than just people

—>Reciprocity/sharing/caring/respect

• Connects ancestors to the present and the future

• Present use is respectful of the past and the future

• Property is not simply mediating relationship claims

—> Complex procedures of recognition

Snuw’uyulh

is the source of legal principles

—>Informs the “standards and practices for judgment and decision-making that help to regulate relationships and resolve disputes”

• Indigenous worldviews de-emphasise the right to exclude while highlighting the principle of sharing

• Sharing is kinship

Wilp- Gitksan

The Gitksan are a decentralized society made up of kinship

groups know as “Houses”

• The House is the basic political unit of Gitksan society, and

each one is closely interrelated with other Houses through

kinship, marriage, and other relationships

• All the Houses are part of four larger clans [Frog, Eagle, Wolf,

and Fireweed

Ayook

decentralized law which derives from the long-term social,

economic, and political interactions of the members, House

groups, and clans, and their interactions with non-Gitksan

peoples.

• Gitksan peoples had collective ways of formalizing the law

that derived from such social interactions over time. These

explicit legal teachings are part of how Gitksan peoples

manage themselves historically, and arguably, they are still

reflected in contemporary governance functions

Adaawk

formal, collective oral histories that preserves the identity

and history of a House with its owned territories, crests,

songs, names, major events, and relationships with other

Houses

Legal systems vs Legal orders

Legal system

• “I use the term “legal system” to describe state-centred legal systems in which

law is managed by legal professionals in legal institutions that are separate from

other social and political institutions”

• Legal order

• “I use “legal order” to describe law that is embedded in non-state social, political,

economic, and spiritual institutions”

• “Law is a process, not a thing, and it is something that people actually do” (96)

• Val Napoleon, “Thinking about Indigenous Legal Order

• Te Urewera Act 2014 (NZ) 2014 No 5 background

Te Urewera is ancient and enduring, a fortress of nature,

alive with history; its scenery is abundant with mystery,

adventure, and remote beauty.

• (2) Te Urewera is a place of spiritual value, with its own mana

and mauri.

• (3) Te Urewera has an identity in and of itself, inspiring people

to commit to its care.

Te Urewera Act 2014 (NZ) 2014 N

Te Urewera declared to be a legal entity

• (1) Te Urewera is a legal entity, and has all the rights, powers,

duties, and liabilities of a legal person

• 12. Vesting of Te Urewera establishment land

• (1) Te Urewera establishment land ceases to be vested in the

Crown

• 13. Te Urewera land inalienable

• Te Urewera land must not be alienated, mortgaged, charged, or

otherwise disposed of, excep

Te Awa Tupua (Whanganui River Claims Settlement) Act 2017 (NZ)

2017 No 7

• 3. Purpose

The purpose of this Act is—

• (a) to record the acknowledgements and apology given by the Crown to

Whanganui Iwi in Ruruku Whakatupua—Te Mana o Te Iwi o Whanganui; and

• (b) to give effect to the provisions of the deed of settlement that establish Te Pā

Auroa nā Te Awa Tupua; and

• (c) to give effect to the provisions of the deed of settlement that settle the

historical claims of Whanganui Iwi as those claims relate to the Whanganui River

Te Awa Tupua (Whanganui River Claims Settlement) Act 2017 (NZ)

2017 No 7

• 10 Scope of this Part

• This Part gives effect to Te Pā Auroa nā Te Awa Tupua, a framework

that provides for—

(a) the legal recognition of Te Awa Tupua:

• (b) the legal recognition and effect of Tupua te Kawa:

• (c) the establishment of Te Pou Tupua, its membership reflecting the partnership under

the Treaty of Waitangi/Te Tiriti o Waitangi:

• (d) the establishment of Te Kōpuka nā Te Awa Tupua:

• (e) the development and effect of Te Heke Ngahuru ki Te Awa Tupua:

• (f) the vesting of the Crown-owned parts of the bed of the Whanganui River and other lands in Te Awa Tupua:

• (g) the establishment of Te Korotete o Te Awa Tupua

Te Awa Tupua declared to be legal person

e Awa Tupua is a legal person and has all the rights,

powers, duties, and liabilities of a legal person

• (2) The rights, powers, and duties of Te Awa Tupua must be

exercised or performed, and responsibility for its liabilities

must be taken, by Te Pou Tupua on behalf of, and in the

name of, Te Awa Tupua, in the manner provided for in this

Part and in Ruruku Whakatupua—Te Mana o Te Awa Tupua

• Te Awa Tupua (Whanganui River Claims Settlement) Act 2017

(NZ) 2017 No 7

• 18 Establishment, purpose, and powers of Te Pou Tupu

The office of Te Pou Tupua is established

• (2) The purpose of Te Pou Tupua is to be the human face of

Te Awa Tupua and act in the name of Te Awa Tupua

• (3) Te Pou Tupua has full capacity and all the powers

reasonably necessary to achieve its purpose and perform and

exercise its functions, powers, and duties in accordance with

this Act

Indigenous Legal Orders -Property generally

Property law/property → about relationship between people and things

• Relational property

• Not individual based but communal interactions with things

• Individuals  → Communities

• Indigenous peoples and their worldview

• Who is an individual?

• What is property?

• Who can hold property

What is the importance of indigenous legal traditions?

Understanding indigenous law without their context is

impossible

• Intersection of different relationships → human and

nonhuman

• What is its relevance for property

Common Law

A recurring tension in property law between 

1. Property as propriety 

“Property, and property in land, as the source of social stability and hierarchy, as the principal device for reproducing a particular social order;

And 

2. Property as preference satisfaction

“Property, including property in land, as a commodity, fungible and alienable, transferable at will by its holder within a market economy 

Doctrine of Tenures

• The quality of the interest in land

•  “The common law doctrine that describes how a person holds land (from the Crown)” 

•  Title (from whom do you do derive title)

*must be somebody from whom you receive a title 

*who is able to grant land at highest level 

Doctrine of estates

• The quantity of the interest in land

•  “the terms of the relationship under which they were granted. The ability to fragment proprietary rights eventually encouraged the creation of a range of different types of common law interests over a single piece of land. This fragmentation is embodied in the doctrine of estates, which focuses upon the segregation of individual interests in land according to the length of time they are to exist for”

• Fee simple, fee tail, freehold, life estate

  • Amount of time you’re holding in land (e.g. uninhibited, in perpetuity → holding fee simple)

  • Fee tail can only be passed down to family 

  • Quantity of time not the same as quality of interest (person whom you derived title) 

2 doctrines that operate at diff levels

Doctrine of Tenures

After the Norman conquest,

After the Norman conquest, conquest of England and then surrender. All lands became the Crowns who held ALL english land → gets distributed from then → feudal 

 

 Sub-infeudation

 ‘‘In Edward I’s day [1272-1307] Roger of St German holds land at Paxton in Huntingdonshire of Robert of Bedford, who holds of Richard of Ilchester, who holds of Alan of Chartres, who holds of William le Boteler, who holds of Gilbert Neville, who holds of Devorguil Balliol, who holds of the King of Scotland, who holds of the King of England”

• One lord passes land onto other lord. C holds land from B who holds it from A who holds it from Crown

•  Seignory

  • Connected to feudal lord’s scope of rights

• Allodial land/title

•  Land without lord

• All went away after 1066 conquest (Norman conquest). 

 

• 
  

  

Lord who is in physical possession of land (in fact) could subdivide land and get villeins . He’s the one dealing with villeins and peasants

 

Feudalism and Land

 No allodial title; land held “of the Lord” (prior to Norman conquest – begins to fade away. Typically under this system, you would transfer land to a lord in exchange for protection) 

2. Homage, fealty, investiture

3. System of landholding created and reproduced a particular social, political, and constitutional order 

What do we mean by feudalism?

•  “Some such answer as the following is the best that I can give—A state of society in which the main social bond is between lord and 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 involved in a proprietary relation, the tenure of land—the man holds of the lord, the man’s service is a burden on the land, the lord has important rights in the land, and (we may say) the full ownership of the land is split up between man and lord

People ceased to own land fully. Clawbacks to RTE. social organization all based on who could exercise certain rights over land 

Feudalism divison

King/Crown

Tenants-in-capite

Mesne lords

Tenants in demesne

------------------------------------------------

Villeins

Peasants

• Feudal system in principle doesn’t operate on ppl below line

• The ones above line are who have land holding relationships (prior to 1066 though, many ppl could hold land, now that, crown owns all and redistributes to those above line)

English Doctrine of (Free) Tenures

Land congregated along 4 main pathways 

1. Knight Service (military service or scutage)

•  A certain number of armed horsemen in the year

2.  Serjeanty ((personal)services to the King)

• Supply of things/services to the Crown

3. Frankalmoin (religious tenure)

•  Saying mass or praying for the Crown/family

4.  Free and Common Socage (agricultural tenure)

• Residuary tenure (land thats been used for agricultural purposes

• Statute of Tenures (1660) (all land essentially becomes for agriculture after this) 

— all in parallel in terms of “ownership”

Incidents of tenure

Process of becoming lord, creates all kinds of cascading arrangements where after the investiture, you would become a person in service of your lord, with all kinds of responsibilities placed on you including financial responsibilities and ability to hold land in unique way (e.g. if u held land as a tenant of lord and passed away, your child would become ward of lord – the ward is technically now a tenant but cant perform duties.. *(Tenant could also be another lord) Lord A can  now exercise physical control of land (which they could NOT do while Lord B was alive). That child  has to make some payment/fee  to A once they are of age to take over (when they become a new tenant). Can pay by working the land. Sometimes can't pay it though. Where marriage stuff comes in 

Homage, Fealty and Suit of Court

• Becoming a tenant/lord, assumption of feudal duties, attend the lord’s court

• Aids

• Financial contribution under fealty

• Relief and Primer Seisin

• When tenant’s fee passed to heir

• Wardship and Marriage

• Guardian-like relationship

• Escheat and forfeiture

• Reversion of tenancy

If B tenant died but no child → land goes back to A. but if As only child is also dead. A dies → land goest to crown

Manorial System

Focuses on those who are connected to physical connection of land and the lord directly above them . Connection bw crown and lord's manor? Not much. King DGAF 

• King (absolute owner of all lands)

• Tenants-in-capite (chief tenant, holding land directly from king)

•  Mesne lords (held lands from chief tenant)

• Tenants in demesne (retained section of lord’s own land, worked by a tenant)

•  Villeins (villagers tied to the lord’s land)

•  Peasants (lowliest within serfdom)

Transformation in the Law of Real Property)

•  It is useful to think about the changes in terms of a gradual accumulation of the bundle of rights that we now think of as comprising the rights of ownership (of property/land)

Even at lowest level, they still had some access to land (with permission of lord) → from there we see a certain level of record keeping, land grants,  etc.  Due to nature of feudal and manorial system, and the way of dealing with individuals, law had to find a way to address that  → statutory intervention 

• Three of the most important are:

  • the right to alienate or transfer land (substitution but not subinfeudation)

    •  (Statute of Quia Emptores, 1290) changes relationships grantor and grantee. A could grant land to B in way of fee simple so then B becomes A (didnt need to hold land of A anymore) → gets rid of subinfeudation 

  • the right to transfer property at death (reduced the importance of escheat)

    •  (Statue of Wills, 1540) could make grants to reduce land returning to crown

  •  security of tenure (of land)

    •  (Statute of Tenures or Tenures Abolition Act, 1660 (no more granting of land to knights, churches etc. → instead, all land was supposed to be treated as free and common socage [ one category] → allows for fungibility of land) 

 

Reception of Common Law 

•  Feudalism technically ended in the 17th century

• Its influence remained, persisting in the new world, including in Canada

• All land derive from the Crown

 ---

•  Property as propriety?

  •  Property, and property in land, as the source of social stability and hierarchy, as the principal device for reproducing a particular social order;

 and

•  “Property as preference satisfaction”

  • Property, including property in land, as a commodity, fungible and alienable, transferable at will by its holder within a market economy

Doctrine of Reception

• Conquered/ceded territory

• Settled territory? 

•  “…the law is the birthright of every subject, so wherever they go they carry their laws with them” – Sir William Blackstone

English carry law with them but allows for accountability 

Allows incorporation of english common law to make it applicable by turning it into Canadian common law

Law and Equity Act, RSBC 1996, c 253

2. Subject to section 3, the Civil and Criminal Laws of England, as they existed on November 19, 1858, so far as they are not from local circumstances inapplicable, are in force in British Columbia, but those laws must be held to be modified and altered by all legislation that has the force of law in British Columbia or in any former Colony comprised within its geographical limits

Relevance of Tenure in Province of British Columbia

1. Tenurial, not allodial title

•  All land is held by Crown did away from feudalism but all land still held by crown

2.  Free and Common Socage

• Historical significance and not contemporary relevance 

3.  Escheat

• Reversion of land the main thing that survives from feudalism →

Escheat

•  Wills, Estates and Succession Act, SBC 2009, c 13, part 3

  •  20. If a person dies without a will leaving a spouse but no surviving descendant, the intestate estate must be distributed to the spouse

 Escheat Act, RSBC 1996, c120

If land in British Columbia escheats to the government because the person last seised or entitled to it dies intestate and without lawful heirs, or forfeits to the government, the Attorney General may take possession of the land in the name of the government

Nisga’a Final Agreement

• If at anytime, any parcel of Nisga’a lands, or any estate or interest in a parcel of Nisga’a lands, finally escheats to the Crown, the Crown will transfer, at no charge, that parcel, estate or interest to the Nisga’a nation.

•  Sec 7 of the Nisga’a Final Agreement

•  Why does the Nisga’a land not escheat to the Crown? The agreement in principle, takes away Common Law (Doctrine of Reception when it comes to escheat ceases to exist) 

Sources

• Indigenous legal order

• English common law → doctrine of reception → 

• Canadian common law 

Relevance of Tenure in Province of British Columbia?

• Escheat Act, RSBC 1996, c120

• Escheat Act, RSBC 1996, c120

 1. If land in British Columbia escheats to the government because the person last seised or entitled to it dies intestate and without lawful heirs, or forfeits to the government, the Attorney General may take possession of the land in the name of the government

Property, Class and property

The economists of the nineteenth century deserve immense credit for placing the distributional question at the heart of economic analysis and for seeking to study long-term trends. Their answers were not

always satisfactory, but at least they were asking the right questions. There is no fundamental reason why we should believe that growth is automatically balanced. It is long since past the time when we should have put the question of inequality back at the center of economic analysis and begun asking questions first raised in the nineteenth century. For far too long, economists have neglected the distribution of wealth…

Land/Location (+ Property) Homeless ness

 “Everything that is done has to be done somewhere. No one is free to perform an action unless there is somewhere he is free to perform it. Since we are embodied beings, we always have a location……[o]ne of the functions of property rules, particularly as far as land is concerned, is to provide a basis for determining who is allowed to be where… If a place is governed by a private property rule, then there is a way of identifying an individual whose determination is final on the question of who is and who is not allowed to be in that place.”

For the most part, the homeless are excluded from all the places governed by private property rules, whereas the rest of us are, in the same sense, excluded from all but one (or maybe all but a few) of those places…That is another way of saying that each of us has at least one place to be in a country composed of private places, whereas the homeless person has None

There are places where the homeless may be and, by virtue of that, there are actions they may perform; they are free to perform actions on the streets, in the parks, and under the bridges…Their freedom depends on common property in a way that ours does not…

• Once again, the homeless have freedom in our society only to the extent that our society is communist. 

• That conclusion may sound glib and provocative. But it is meant as a reflection on the cold and awful reality of the experience of men, women, and children who are homeless in America [and Canada]

•  For them, the rules of private property are a series of fences that stand between them and somewhere to be, somewhere to act

•  The only hope they have so far as freedom is concerned lies in the streets, parks, and public shelters, and in the fact that those are collectivized resources made available openly to al

Now one question we face as a society – a broad question of justice and social policy – is whether we are willing to tolerate an economic system in which large numbers of people are homeless?

 Since the answer is evidently “Yes,” the question that remains is whether we are willing to allow those who are in this predicament to act as free agents, looking after their own needs, in public places – the only space available to them?

• It is a deeply frightening fact about the modern United States [Canada] that those who have homes and jobs are willing to answer “Yes” to the first question and “No” to the second

• 
  

Robert Ellickson, “Controlling Chronic Misconduct in City Spaces”

“chronic street nuisances” … “when a person regularly

behaves in a public space that annoys—but no more than

annoys—most other users and persists in doing so over a

protracted period.

• A space that all can enter, however, is a space that each is

tempted to abuse. Societies therefore impose rules-of-the-

road for public spaces. While these rules are increasingly

articulated in legal codes, most begin as informal norms of

public etiquette.

“A chronic panhandler also annoys because he unintentionally

signals social breakdown on a number of fronts.

• First, a regular beggar is like an unrepaired broken window—

a sign of the absence of effective social-control mechanisms in

that public space.

• Second, the activity of begging, unlike many other forms of

street nuisance behaviour, is likely to signal erosion of the

work ethic.

A person perpetrates a chronic street nuisance by

persistently acting in a public space in a manner that violates

prevailing community standards of behavior, to the significant

cumulative annoyance of persons of ordinary sensibility who

use the same spaces…

• … a city’s codes of conduct should be allowed to vary

spatially—from street to street, from park to park, from

sidewalk to sidewalk. Just as some system of “zoning” may be

sensible for private lands, so may it be for public lands

A person perpetrates a chronic street

nuisance by persistently acting in a public

space in a manner that violates prevailing

community standards of behavior, to the

significant cumulative annoyance of

persons of ordinary sensibility who use

the same spaces…

• … a city’s codes of conduct should be

allowed to vary spatially—from street to

street, from park to park, from sidewalk to

sidewalk. Just as some system of “zoning”

may be sensible for private lands, so may

it be for public lands.”

A person perpetrates a chronic street

nuisance by persistently acting in a public

space in a manner that violates prevailing

community standards of behavior, to the

significant cumulative annoyance of

persons of ordinary sensibility who use

the same spaces…

• … a city’s codes of conduct should be

allowed to vary spatially—from street to

street, from park to park, from sidewalk to

sidewalk. Just as some system of “zoning”

may be sensible for private lands, so may

it be for public lands

Victoria (City) v Adams, (2008) BCSC 1363

an inevitable conflict between the need of homeless individuals to perform essential, life-sustaining acts in public and the responsibility of the government to maintain orderly, aesthetically pleasing public parks and streets.”

• Charter Rights (and Property Rights)

• 7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice

Govt can regulate public property but not in a way that deprives people of their right to life, liberty etc. 

Parks Regulation Bylaw No. 07-059

• Nuisances, obstructions

• 14(1) A person must not do any of the following activities in a

park:

• behave in a disorderly of offensive manner;

• molest or injure another person;

• obstruct the free use and enjoyment of the park by another person;

• take up a temporary abode over night;

Public properties are held for the benefit of the public, which

includes the homeless. The government cannot prohibit

certain activities on public property based on its ownership of

that property if doing so involves a deprivation of the

fundamental human right not to be deprived of the ability to

protect one’s own bodily integrity.”

• Charter rights analysis (involving section 7)

• The state (government at all levels) must take steps to protect life, liberty,

and security

Victoria (Cit hokdungy) v Adams, (2008) BCSC 1363

“I conclude that the Defendants are not asserting a property

right. They do not claim that the homeless can exclude anyone

from any City property, or determine the use of any City

property. They do not seek to have public property allocated

to their exclusive use. What they are seeking does not amount

to an appropriation of public property. They are simply saying

that the City cannot manage its own property in a manner that

interferes with their ability to keep themselves safe and warm.

• I have found that a significant number of people in the City of

Victoria have no choice but to sleep outside in the City’s parks

or streets…”

10. No person shall conduct himself or herself in a disorderly

or offensive manner, or molest or injure any other person, or

loiter or take up a temporary abode overnight in any place on

any portion of any park, or obstruct the free use and

enjoyment of any park or place by any other person…

• 11. No person shall erect, construct or build or cause to be

erected, constructed or built in or on any park any tent,

building, shelter, pavilion or other construction whatsoever

without the permission of the General Manager

A. A person experiencing homelessness may take up

temporary abode in a park if that person:

• (a) is in a park or a specified area of a park in which a temporary shelter is

not prohibited by this by-law;

• (b) erects a temporary shelter that complies with the provisions of this by-

law; and

• (c) dismantles and moves the temporary shelter in accordance with the

provisions of this by-law

Vancouver Parks Board (Parks Control By-Law

A person experiencing homelessness may take up

temporary abode in a park if that person:

• (a) is in a park or a specified area of a park in which a temporary shelter is

not prohibited by this by-law;

• (b) erects a temporary shelter that complies with the provisions of this by-

law; and

• (c) dismantles and moves the temporary shelter in accordance with the

provisions of this by-law

many restrictions on tempioorary sheltsers

A person must not build, construct, place, maintain,

occupy, or cause to be built, constructed, placed, maintained or

occupied in any street, any structure, object, or substance

which is an obstruction to the free use of such street

BILL 45 – 2023

The Community Charter, S.B.C. 2003, c. 26, is amended by

adding the following section to Division 4 of Part 8:

• Availability of shelter

• 274.1 For the purposes of enforcing, under section 274, a bylaw

against a person who is sheltering at an encampment while

homeless, alternative shelter is reasonably available to the person

and meets the basic needs of the person for shelter if

• (a) the person may stay overnight at the shelter,

• (b) the person has access to a bathroom and shower at or near the shelter,

• (c) the person is offered without charge one meal a day at or near the shelter, and

• (d) the shelter is staffed when persons are sheltering at the shelte

The Vancouver Charter, S.B.C. 1953, c. 55, is amended by adding

the following section:

• Availability of shelter

1 For the purposes of enforcing, under section 334, a by-law

against a person who is sheltering at an encampment while

homeless, alternative shelter is reasonably available to the person

and meets the basic needs of the person for shelter if

• (a) the person may stay overnight at the shelter,

• (b) the person has access to a bathroom and shower at or near the shelter,

• (c) the person is offered without charge one meal a day at or near the shelter, and

• (d) the shelter is staffed when persons are sheltering at the shelter.

Regional Municipality of Waterloo v Persons

Unknown and to Ascertained 2023 ONSC

Every individual is equal before and under the law and

has the right to the equal protection and equal benefit of the

law without discrimination and, in particular, without

discrimination based on race, national or ethnic origin, colour,

religion, sex, age or mental or physical disability.

• (2) Section (1) does not preclude any law, program or activity

that has as its object the amelioration of conditions of

disadvantaged individuals or groups including those that are

disadvantaged because of race, national or ethnic origin,

colour, religion, sex, age or mental or physical disabili

sec 15 of charter

Persons Unknown cas

Bylaw violated Charter rights (sec 7)

• Bylaw did not violate Charter rights (sec 15)

• Competing claims by city and homeless persons over whether

the bylaw (13050) complied with the Charter

• City – how to enforce its right to evict trespassers

• Homeless persons – protection under sec 7 & 15(1) of the Charter

• City wanted a declaration and injunction

• Homeless people want to remain

Regional Municipality of Waterloo v Persons

Unknown and to Ascertained 2023 ONSC 670 analysis

ec 7 analysis

• City of Victoria v Adams framework

• Not simply a space analysis

• “Low barrier or accessible to accommodate population”

• Court rejected the sec 15 of the Charter argument

City applied for approval of new bylaw

• “…including a declaration that its By-law Number 25-021, A By-law

Respecting the Use of 100 Victoria Street North, Kitchener (as Owned by the

Regional Municipality of Waterloo) to facilitate the Kitchener Central

Transit Hub and other Transit Development (the “Site-Specific By-law”)

complies with the Canadian Charter of Rights and Freedoms (“Charter”)…”

• “…I consider that the time has now come for homelessness to

be recognized as an analogous ground for the purposes of

s.15 of the Chart

Towards a Right to Housing - International Covenant on Economic, Social and Cultural

Rights (1976)

International Covenant on Economic, Social and Cultural

Rights (1976)

• 11.1. The States Parties to the present Covenant recognize

the right of everyone to an adequate standard of living for

himself and his family, including adequate food, clothing and

housing, and to the continuous improvement of living

conditions. The States Parties will take appropriate steps to

ensure the realization of this right, recognizing to this effect

the essential importance of international co-operation based

on free consent.

National Housing Strategy Act,

It is declared to be the housing policy of the Government of

Canada to

• (a) recognize that the right to adequate housing is a fundamental human

right affirmed in international law;

• (b) recognize that housing is essential to the inherent dignity and well-

being of the person and to building sustainable and inclusive communities;

• (c) support improved housing outcomes for the people of Canada; and

• (d) further the progressive realization of the right to adequate housing as

recognized in the International Covenant on Economic, Social and Cultural

Right

Why Protect Property

Moral + legal assertions of possession, ownership, use, alienation,

disposition

Sources of Protection

• Express Statutory Provisions

• Common Law

• Constitution

• Right to Compensation

Express Provisions protection property

Canadian Bill of Rights

Canadian Bill of Rights, SC 1960, c 44

• Recognition and declaration of rights and

freedoms

• 1. It is hereby recognized and declared that

in Canada there have existed and shall

continue to exist without discrimination by

reason of race, national origin, colour,

religion or sex, the following human rights

and fundamental freedoms, namely,

• (a) the right of the individual to life, liberty,

security of the person and enjoyment of

property, and the right not to be deprived

thereof except by due process of law

Authorson v Canada [2003] 2 SCR 40

• The governmental expropriation of property without

compensation is (1) discouraged by our common law

tradition, but it is (2) allowed when Parliament uses clear

and unambiguous language to do so.

Alberta bill of rights

1. Same as BC; …

• Alberta Bill of Rights, RSA 2000, c —

A-14

• 2. Every law of Alberta shall, unless it

is expressly declared by an Act of the

Legislature that it operates

notwithstanding the Alberta Bill of

Rights, be so construed and applied

as not to abrogate, abridge or infringe

or to authorize the abrogation,

abridgment or infringement of any of

the rights or freedoms herein

recognized and declared.

An Act to Protect Certain Civil Rights, SS 1947, c 35, s 10

(Saskatchewan)

Right to Own and Occupy Property

• 10. Every person and every class of persons shall enjoy the right to acquire

by purchase, to own in fee simple or otherwise, to lease, rent and to

occupy any lands, messuages, tenements or hereditaments, corporeal or

incorporeal, of every nature and description, and every estate or interest

therein, whether legal or equitable, without discrimination because of the

race, creed, religion, colour or ethnic or national origin of such person or

class of persons

Property Law Act [RSBC 1996] c 377

• Citizenship

A person who is not a Canadian citizen has the same

capacity to acquire and dispose of land in British Columbia as

if the person were a Canadian citizen.

• (2) A person must not be disturbed in the possession or

precluded from the recovery of land in British Columbia

merely because of the citizenship or lack of citizenship of

some person from or through whom the person may derive

title.

BC Human Rights Code [RSBC 1996], c. 210

Discrimination in purchase of property

• 9 A person must not

• (a) deny to a person or class of persons the opportunity to purchase a commercial unit or

dwelling unit that is in any way represented as being available for sale,

• (b) deny to a person or class of persons the opportunity to acquire land or an interest in

land, or

• (c) discriminate against a person or class of persons regarding a term or condition of the

purchase or other acquisition of a commercial unit, dwelling unit, land or interest in land

• because of the Indigenous identity, race, colour, ancestry, place of

origin, religion, marital status, physical or mental disability, sex, sexual

orientation, or gender identity or expression of that person or class of

persons

Common law and property protection

Riopelle v The City of Montreal, (1911) 44 SCR 579

• THE CHIEF JUSTICE.—This is an action of damages for trespass to land. It is admitted that the servants of the corporation defendant (respondent here) entered upon the plaintiff's (now appellant's) property against his will and there demolished a building in course of erection.

• The forcible entry is justified on the ground that the building was defectively constructed with improper materials and by incompetent workmen; that the respondent had legal authority for what it did, and that it acted throughout in conformity with the directions or allowance of the legislature.

• There is no evidence of imminent danger or of immediate and urgent necessity for the protection of the public and the respondent does not base its defence to the action on that ground.

Riopelle v The City of Montreal, (1911) 44 SCR 579

When the law invests a person with authority to do an act which, if done without express legal sanction, would be an offence, the conditions subject to which the act is authorized must be complied with literally.

• In other words, where the legislature has thought fit to direct the doing of something which but for that direction or authority would be an actionable wrong it is incumbent on the party who professes to exercise the power conferred by the statute to prove beyond all doubt that he strictly complied with the conditions subject to which the power has been conferred.

• The statute relied upon by the respondent provides very clearly, as I shall point out, that the alleged wrong-doer should first be warned and required to abate the nuisance complained of; and it is only after notice and refusal that entry on the land to abate the nuisance can be permitted.

Canadian Charter of Rights and Freedoms

Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

• 8. Everyone has the right to be secure against unreasonable search and seizure.

• 15. (1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.

• (2) Section (1) does not preclude any law, program or activity that has as its object the amelioration of conditions of disadvantaged individuals or groups including those that are disadvantaged because of race, national or ethnic origin,

colour, religion, sex, age or mental or physical disability.