• Problems
• End of Term Rapid Review

Week 1: Intro to the Course #

• When we addressed the hypothetical problem in Week 1, we focused only on identifying the questions or issues that needed to be resolved. Revisiting this problem at the end of our first term, how would you answer the question of whether Dalhousie is in possession of the quad and administrative buildings?

• How would you describe the main disagreement(s) between Justice Dickson and Justice Laskin in Harrison v Carswell? What assumptions on the part of the judges underlie their differences?

Week 2: Recognizing Land Relations #

• How does the Court’s approach to treaty rights in R v Simon differ from the approach taken to treaty by Professor Henderson in Mikmaw Tenure in Atlantic Canada? How does the latter help us to understand the co-existence of–and relationship between–multiple legal orders (e.g. Anglo-Canadian law and Mi’kmaw law?)

• How does Locke say that one comes to own a wild acorn? Do his ideas help the judges in Pierson v Post to resolve the question of who owns the fox?

• How do the preferred principles of first possession concerning foxes during a hunt differ between the two decision in Pierson v Post?

• What legal test does one need to satisfy in order to establish possession?

• How do the facts and the decisions in Armorie v Delamirie and Keron v Cashman illustrate and underscore the relative nature of possession and its relationship to ownership?

• Based on your knowledge of the legal concept of netukulimk from Jamie Battiste’s article “Understanding the Progression of Mi’kmaw Law”, identify one question you would ask to gain a better understanding of how this concept is important for Mi’kmaw land relations.

Week 4: From Possession to Title? #

• Distinguish between the different types of “title” at play in St. Catherine’s Milling and explain their relationship to the common law doctrines of tenure and estates in lend.

• Is the Royal Proclamation of 1763 a source of Aboriginal title according to the doctrine developed in St. Catherine’s Milling? If so, what are the implications of this finding?

• According to the courts in St. Catherine’s Milling, is Aboriginal title a “beneficial interest” land?

• Explain how the judicial decisions in St. Catherine’s Milling contribute to the legal foundations for settler colonialism in the post-Confederation period.

• How does Locke’s theory of possession become a justification for terra nullius in the era of settler colonialism?

Week 5: Governing Land Uses #

• How do the courts in Canadian Copper Co. and Canadian Paper Co. apply to the Shelfer test to resolve the question of the appropriate remedy in nuisance?

• How do the judges in Canadian Copper Co. and Canadian Paper Co. characterize the nuisances at issue as “natural” or “unnatural”? How does this characterization influence their decisions?

• How do Justice Idington in Canadian Paper Co. and Justice Middleton in Canadian Copper Co. differ in their understanding of “relevant” evidence? How does this determination affect the application of the Shelfer test?

• How do restrictive covenants “run with the land”?

• Does the court’s reasoning and result in Tulk v Moxhay adequately address the concerns raised in Keppell v Bailey?

• What are the requirements for the burden of a covenant to run with the serviant land? For the benefit to run with the dominant land?

Week 6: ‘Taking’ Property #

• When do riparian owners in Canada hold common law property rights in rivers and streams?

• What principle of statutory interpretation is applied by the Supreme Court of Canada in McLaren v Caldwell? What assumptions underlie this principle and how do they help the court to resolve the issue of expropriation in the case? How is this principle applied in Manitoba Fisheries?

• How was disallowance of the Rivers and Streams act by Parliament in the McLaren v Caldwell saga justified by Conservative legislators? How was it contested by the Liberal opposition?

• What can the McLaren v Caldwell case and surrounding legal developments tell us about arguments over the institutional role of courts versus legislatures?

Week 7: Alienation, Exit and Control #

• What is the function of the common law doctrine of estates?

• Compare the common law’s approach to restraints on alienation as applied to the fee simple estate and to Aboriginal title.

• Explain the challenge of interpreting the following clause in a will: “All my property to the Ecology Action Centre (an environmental charity in Atlantic Canada) and then to my daughter in fee simple.” How would you propose to interpret this clause if the will also contained the following preamble: “My dearest wish is that my property be used in some way to conserve and steward Nova Scotia’s natural places and that my daughter be able to enjoy those places to the fullest extent”?

• Explain the significance of the following statement by Justice Mills in Blackburn v McCallum: “It is reasonable to say that where an estate is bestowed, of which the power of alienation is an incident, that one conveying such an estate to another shall not have the power to alter its character, and to make it something wholly different from what it has been made by the law. To do so is to assume the power to make an estate unknown to the law. It is an attempt not simply to convey away an estate, but to exercise a legislative power, and to create a new form of property in land.”

• Do you think the following restraint on a transfer of land would be valid: “To A, on the condition that, within the next 30 years, if A chooses to sell the land they can only sell it to someone with a degree from Dalhousie University”?

Week 8: Trusts, Property and Citizenship #

• Who owns property placed in trust?

• Explain the significance and function of the distinction between “law” and “equity” using trust and the restrictive covenant as examples

• In Iwasaki v R, the Court finds that “the powers, and particularly the discretionary powers of the Custodian are inconsistent with any trust.” Do you agree? Explain.

• In her letter to Prime Minister William Lyon MacKenzie King, Toyo Takahashi urges that, “[a]fter all our efforts in good citizenship we do not deserve to have our retirement jeopardised by the liquidation of our properties.” What does Takahashi’s letter suggest to us about the relationship between property ownership and “good citizenship”?