A Railway, a City, and the Public Regulation of Private Property: CPR v. City of Vancouver

The doctrine of regulatory or constructive taking establishes limits on the public regulation of private property in much of the common law world. When public regulation becomes unduly onerous — so as, in effect, to take a property interest from a private owner — the public will be required to compensate the owner for its loss. In 2000, the City of Vancouver passed a by-law that limited the use of a century-old rail line to a public thoroughfare. The Canadian Pacific Railway, which owned the line, claimed the regulation amounted to a taking of its property for which the city should pay compensation. The case, which rose to the Supreme Court of Canada in 2006, marked that court’s first engagement with the doctrine of regulatory taking (also known in Canada as de facto expropriation) in nearly twenty years. This chapter explores the intertwined histories of a railway company and a city that gave rise to CPR v. City of Vancouver. It then analyzes the court decisions and considers the role of courts in mediating the appropriate boundary between private property and public regulation in a jurisdiction where there is no constitutional protection for private property

Territoriality, Aboriginal Rights, and the Heiltsuk Spawn-on-Kelp Fishery

In 1988, the Department of Fisheries and Oceans ( DFO\u27) charged two Heiltsuk brothers with attempting to sell herring spawn-on-kelp without a J-license. In 1989, the Heiltsuk Tribal Council initiated legal action to compel the DFO to issue it additional J-licenses and to recognize Heiltsuk jurisdiction to manage the fishery in their traditional territory on the central coast. An analysis of these cases and of the historical regulation of the herring spawn fisheries reveals a continuing conflict between the state and a First Nation over a fishery and over the legitimacy of increasingly intertwined legal systems. The Heiltsuk defense of their fishery in court may be seen as an attempt to give meaning in Canadian law to the boundaries of their traditional territory, and the state\u27s response an attempt to establish its hegemony over the fisheries within its boundaries. In its Gladstone decision the Supreme Court of Canada ( SCC ) recognized a Heiltsuk right to a commercial spawn-on-kelp fishery, but referred to the trial court questions about whether the state\u27s infringement of that right was justified. In so doing, the SCC ignored the territorial nature of the Heiltsuk claim. It assumed the territoriality of the Canadian state and within it, the authority of the DFO. The SCC\u27s failure to recognize Heiltsuk territoriality diminishes Heiltsuk efforts to be recognized as a political community with authority to govern its fisheries, and, by expanding the scope of what might constitute a justifiable infringement of an Aboriginal right, weakens the protection for those rights in the constitution

When Deciding Whether to Allow a Taking of Property We Need to Ask What We Want Property Rights to Do

In recognition of the dangers inherent to a regime that enables a majority of owners to terminate the individual property interests of a dissenting minority, the Strata Property Act requires that strata corporations secure court confirmation of dissolution votes. Not surprisingly, the shift to a lower dissolution threshold, the rapidly rising land values in British Columbia’s urban centres, and the increased costs of maintaining aging buildings, have precipitated a growing number of dissolution votes and a steady flow of applications to the British Columbia Supreme Court (BCSC) to confirm the votes

Regulating Short-Term Accommodation within Condominium

Owning land within condominium, or strata property as it is known in British Columbia, includes holding an individual strata lot, a share of the common property, and the right to participate in governing the uses of the private and common property. Owners participate in governing through membership and voting rights in a strata corporation which has the responsibility to maintain the common property and the authority to establish bylaws that restrict the use of the common and private property. The corollary of membership and a voice in the affairs of the strata corporation is a duty to accept its governing authority. Airbnb, Expedia, and other digital platforms that facilitate short-term accommodation have caused governments at many levels, including provinces, regional districts, municipalities, and strata corporations, to consider restricting this use of residential property. In this comment, I review the decision of the British Columbia Supreme Court (BCSC) in Semmler v The Owners, Strata Plan NES3039, a case involving a dispute between an owner and strata corporation over short-term accommodation

Lawyers\u27 Empire and The Great Transformation

Writing through the years of World War II and attempting to understand its horrors, the carnage of World War I, the great depression, and the rise of communist and fascist regimes, Karl Polanyi posited that Western Europe had undergone The Great Transformation through the nineteenth century. Built around policies of economic liberalism and the gospel of the self-regulating market, this transformation had produced a century of unparalleled peace and material wealth in Europe, but the unmooring of the market from other social forces, and the remaking of land and labour as commodities, would unleash, when the buttressing pillars faltered, the calamities of the twentieth century. Those pillars — the balance-of-powers system among European nations, the liberal state, and the gold standard — had functioned to preserve the peace, extend democracy, and facilitate international trade, but they played supporting roles. According to Polanyi, “the fount and matrix of the system was the self-regulating market.

The Boldt Decision in Canada: Aboriginal Treaty Rights to Fish on the Pacific

The Oregon Boundary Treaty of 1846 established the forty-ninth parallel as the boundary between British and American interests in western North America. After 1846, Aboriginal peoples to the north of the border negotiated with the British Crown the terms of their coexistence with incoming settlers, those to its south with the United States. As a result, while some of the Coast Salish and Kwak’waka’wakw peoples in what would become British Columbia concluded treaties between 1850 and 1854 with the Crown’s representative, James Douglas, the tribes in the United States settled with the governor of the Washington territory, Isaac I. Stevens, in 1854 and 1855. The Douglas and Stevens treaties, as the agreements came to be know, included monetary payment and guarantees of reserved land, hunting rights, and fishing rights. The fisheries provisions were short. The Douglas treaties reserved to Aboriginal peoples the right to “their fisheries as formerly”; the Stevens treaties provided that “the right of taking fish at usual and accustomed grounds and stations is further secured to said Indians in common with all citizens of the Territory.” This essay focuses on the relationship between U.S. and Canadian judicial interpretations of these treaty rights to fish. In particular, it explores the impact of two U.S. decisions – United States v. Washington ( the Boldt decision ) and Washington v. Washington State Commercial Passenger Fishing Vessel Association – on the general development of Aboriginal and treaty rights in Canada. Although not widely cited in Canadian courts, the decisions have had a profound influence on Canadian Aboriginal law. In addition, this essay considers the historical evidence pertaining to the fishing rights in the Douglas treaties and suggests various interpretations. In doing so, it turns back to the U.S. decisions to consider whether they provide useful guidance for the interpretation of the fishing rights provision in the Douglas treaties

A Court Between: Aboriginal and Treaty Rights in the British Columbia Court of Appeal

This article, one in a collection of articles on the British Columbia Court of Appeal, surveys that court\u27s jurisprudence in the field of Aboriginal and treaty rights. It begins in the 1960s and 1970s with a series of cases that reveal a court confident in its assumption that Aboriginal rights had little bearing on the province. The decisions of the court through the 1970s reflected and consolidated a status quo that had all but ignored Aboriginal rights and title. This would change in the 1980s with a series of remarkable decisions from the court following the constitutional entrenchment of Aboriginal and treaty rights in 1982. These decisions would mark the end of an era in British Columbia when the claims of Aboriginal peoples might give rise to a sense of moral obligation but no legal consequence and, more broadly, they would contribute in important ways to the interpretation of Aboriginal and treaty rights as constitutional rights. In the 1990s, a divided court of appeal played a less prominent role and, in recent years, it has revealed itself much more comfortable in defining the parameters of a process than in determining the content of Aboriginal rights and title. This article also explores the institutional placement of provincial courts of appeal, positioned as they are between trial courts that produce the record of the case and, in the area of Aboriginal and treaty rights, an engaged Supreme Court of Canada that has the final say. An interventionist Supreme Court necessarily reduces the impact of a provincial court of appeal, and many of the lower court\u27s decisions are all but forgotten in the shadow of the Supreme Court\u27s rulings. Nonetheless, in the years following the constitutional entrenchment of Aboriginal and treaty rights in 1982, the British Columbia Court of Appeal became one of the prominent voices in the articulation of these rights. This article divulges that voice, its early reticence, and the diverse strands that emerged within it

A Liberal Theory of Property in condominium

The building engineer’s report on the low-rise condominium apartment building details the scope of work required. The roof is leaking, the elevator requires seismic upgrading, the windows and exterior siding are failing, and the heating system needs rebuilding. Although the owners of the individual apartments have been paying monthly fees in anticipation of these common property expenses, each owner faces a substantial special levy to cover the expected costs. The land developer’s offer to purchase the complex is eye-popping. Anticipating that the city will permit it to demolish the existing building and construct a high-rise condominium apartment tower on the site, the developer has offered owners a significant premium to induce their collective sale. If they were to accept the offer, owners would receive approximately twice the assessed value of their units based on individual sale. This scenario – the need for extensive and expensive renovations and an attractive purchase offer – is increasingly common as condominium buildings age and as cities change and grow. In some developments, it produces conflict between those owners who want to sell and those who wish to retain their individual apartments. In turn, the conflict raises important questions about the appropriate threshold for owner consent: should the dissolution of condominium and the resulting termination of private property interests require the unanimous consent of owners, or is a majority or super-majority vote sufficient

Tending Gardens, Ploughing Fields, and the Unexamined Drift to Constructive Takings at Common Law

Expropriation law in Canada has operated on the basis of two presumptions at common law: that compensation is owing for the compulsory acquisition of property unless specifically indicated otherwise by statute; and, that no compensation is owing for land use regulation unless specifically provided for by statute. In its decision in Annapolis Group Inc. v Halifax Regional Municipality, the Supreme Court of Canada abandoned the second presumption that compensation for land use regulation required a statutory foundation. The majority and dissent proceed on the unexamined foundation that there is a common law basis for compensation in claims for constructive takings or de facto takings. This article sets out the earlier consensus, documents the drift to constructive takings at common law, and presents the implications

Condominium: A Transformative Innovation in Property and Local Government

Condominium is a form of ownership that produces separate parcels of land and a structure of local government within multi-unit developments. As one form of common interest community, condominium packages private property with a co-ownership interest in common property and rights to participate in the governing organisation. A statutory innovation, the condominium form has been adopted in jurisdictions around the world and has quickly become the dominant form of land ownership for new-build housing in many cities. As an increasingly prominent feature of urban real estate, condominium is changing the nature of ownership and of local government, and is one of the defining institutions of our time