Review

Week 3

Find these slides online: https://webslides.baxterlab.ca/slides/property2025-26/03/
Category: Property 2025-26

Agenda

Review / take-up Week 2 problem
Feudal land tenure

The Problem

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?

Answer Framework

What part of this framework did you understand best?
What part did you understand least?

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Locke (1690), Henderson on Treaty (1752)

Compare Locke’s theory of property relations with Henderson’s interpretation of treaty relations. Which seem more plausible or relevant to the context of land relations in the Atlantic region in the mid-18th century?

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

Feudal Land Tenure

Background to the common law doctrine of Aboriginal Title in context of settler colonialism
Locke: property in a “state of nature”
Feudal tenure is the “public law” framework for property in land originating in medieval England

Roots of British Land Tenure

Early medieval / Anglo-Saxon England (5th to 11th centuries)
Norman conquest / Battle of Hastings (1066)

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Key Features of Feudal Tenure

All land “owned” by the king (radical or allodial title)
Privilege of tenure: property held “of the king”
Feudal incidents (personal relations, fealty, obligations)
Subinfeudation (tenants-in-chief, land lords, Quia Emptores 1290)
Restraints on descent alienation

Common Law Estates

Ownership of a legal interest in land, not ownership of land (e.g. fee simple estate).

Next week: Doctrine of Aboriginal Title

How does the common law doctrine of Aboriginal Title “fit” into the structure of feudal land tenure we discussed today? On what assumptions does it depend?

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