Recognizing Land Relations

Week 2

Find these slides online: https://webslides.baxterlab.ca/slides/property2025-26/02/
Category: Property 2025-26

Agenda

Week 1 recap
Our course in context
Weekly problem
Property and possession
Treaty as international legal order

Recap: Week 1

Issue spotting: what are the legally relevant questions to ask of the facts in light of the materials you’ve read? How do these questions fit together?
Two big concepts: (1) “public vs private” and (2) “possession”
Judicial reasoning and disagreement

Our Course in Context

How should we study “property”?

colonialism
economic inequality

Starting point: land relations

Week 2 Problem: Wowkwis 🦊

The hunter has a a Nova Scotia Mi’kmaq Harvester Identification Card issued by the Assembly of Nova Scotia Mi’kmaw Chiefs but no hunting licence. The dog owner happens to be carrying a licence and claims exclusive property in the fox. Is the dog owner correct? Why or why not?

Possession @ Common Law

Locke on possession as the basis of property
The legal elements of possession
The relative nature of possession
Application: the “rule of capture”

Locke on possession

What is the “state of nature”? How does Locke say property is established here?

Elements of possession

What did the boys in Keron v Cashman need to do simultaneously to obtain possession?

Intention to control
Actual physical control

Relativity of possession

“That the finder of a jewel, though he does not by such finding acquire an absolute property right of ownership, yet he has such a property as will enable him to keep it against all but the rightful owner”

Armorie v Delamirie

Rule of capture

What “rule of capture” does each of the judges in Pierson v Post favour? Why?

Treaty as International Legal Order

Imperialist context: 19th and 18th centuries
Covenant chain of treaties: 1725 to 1779
R v Syliboy (1928); R v Simon (1985)
Mi’kmaw land tenure (netukulimk)

17th and 18th Century Context: Imperialism

Key point: when we think about the significance of “property” in the colonial history of Canada, we tend to think immediately of settler colonialism: the policy and practice of European settlement that had the express purpose of dispossessing–often violently– and eliminating Indigenous peoples.

Property did and continues to have a central role in settler colonialism and we will give significant emphasis to that relationship in this course as it emerged mainly starting in the 19th century.

But before we explore that topic, I first want to give some attention to the period of land relations before the 19th century, where a related but distinct kind of logic characterized Indigenous-European relations. Let’s call this logic “imperialism”.

Dominated by: trade, religious missions, and military alliance systems (featuring proxy wars between European powers)

Key idea for “property” in this context: property on the ground was CONTESTED (often violently – see founding of Halifax) and NEGOTIATED between plural legal system and worldviews

Covenant chain of treaties: 1725 to 1779

Not land cession treaties
Consensual agreements among the Indigenous federations and European monarchies: Nikmanen order
Renewal of relationships (living agreements)
Foundation of British “empire” / United Kingdom

Modern Anglo-Canadian Treaty Interpretation

R v Syliboy (1928): denial of Mi’kmaq treaty rights
R v Simon (1985): recognition and affirmation of Mi’kmaw treaty rights within Canadian constitutional framework

Mi’kmaw land tenure

How might the Mi’kmaw legal concept of netukulimk provide a basis for resolving the dispute between the hunter and the dog owner?

What is the legal basis for applying the concept of netukulimk in this context?

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