Land

Land as an object of property in systems of law with European roots may appear to have patently obvious or unremarkable qualities, and yet its characteristics are both historically and culturally contingent. In the common law, land forms the first of the two major kinds of property designated by the distinction between real and personal property. The only disputes around the definition of land have traditionally related to the physical extent of boundaries (do they extend upwards so as to make overflying aircraft into trespassers, or downwards to include sub-surface minerals?), the transformation of personalty into realty by attaching it to land (fixtures), and the changing status of the lease (in England, leases were at one time dealt with by common law courts as personal property). We could entertain two lines of inquiry, however, that would provoke a deeper level of reflection on just what land “is.” The first would ask how it is that, in the common law, land as the object of property came to shed material qualities related to local knowledge of the land’s geographic particularities, such as modes of sustainable use, that are now dealt with under environmental law. The second arises when courts are confronted with claims by Indigenous peoples to their traditional territories, and contemplate including Indigenous perspectives on property, rights, and ownership as part of the process of recognition such that they engage in an exercise in cross-cultural comparison. In the very broadest of terms, the distinctions that emerge are those between land as an inert thing (an object) and land as a participant in a relationship (something that could be qualified as a distinction between space and place). Both inquiries lead us to a more complex appreciation of the way in which Western property is based in a particular geographic and social imaginary—a way of seeing and understanding land—that derives from its cultural evolution. English medieval land law was divided into royal law, which governed the freehold title of those within the feudal hierarchy, and the law of individual manors, which governed copyhold (the title of villeins holding land through the rolls of the manor) and rights in the commons, (based on the customs of the local peasant economy). These manorial laws provided often very specific rights of access to and enjoyment of local land, water, and resources, such as the right of estover (permitting collection of fallen dry timber for fuel and other household uses), piscary (fishing), common of mast (the right to turn pigs out to forage during fattening season), and turbary (regulating the cutting of turf). These rights, and important limitations on them derived from local geographic conditions, combined property rights and what we now think of as environmental regulation. There was no uniform, one-size-fits-all concept of property, which was shaped, instead, by the nature of land as a specific place, and local knowledge of its capacities. In fact, the Middle English use of the term property (as “proper to”) indicated a fusion between personal identity and place. Land was quantified with reference to human experience—a day’s walk—or as the location of events in local memory. Much of this was to change with the Enclosure movement, at its height between 1750 and 1820. Enclosure entailed the physical and symbolic closing-off of lands previously available to peasant communities through the erection of fences or hedges, and the legal dispossession of these communities, by act of Parliament, in favour of private landowners. Landless peasants became labourers and migrated to cities or to the English colonies, bringing urban development that radically changed local geography and made historic local knowledge redundant. On enclosed …