Dispositions of Public Resources and Interests in Public Lands

• Author: Elaine L. Hughes, Arlene J. Kwasniak, Alastair R. Lucas
• Pages: 149-169

149

CHAPTER 7

DISPOSITIONS OF

PUBLIC RESOURCES

AND INTERESTS

IN PUBLIC LANDS

Alastair R Lucas

A. INTRODUCTION

We have seen that the history of Canadian public lands has been one

of privatization, mainly f‌irst, to promote private development, wealth

maximization, and use, particularly dispositions for agriculture, tim-

ber, and minerals (including petroleum and natural ga s), and second, to

promote settlement. Disposition of public lands to settlers for agricul-

tural development was a prime technique for achieving the latter goal.

So were grants of land to support development.

As time passed, the idea of disposition of public lands took on a

broader meaning. It extended, as Bankes and Saunders noted,1 to pur-

poses such as ecological protection and the establishment of protected

areas for public parks, even though the former might still be classif‌ied

as public lands, and governments retained protective duties in relation

to the latter.

A question that often arose in a variety of contexts was, what is the

legal character of these dispositions? Broadly speaking, th is was import-

ant f‌irst, to determine whether particular dispositions came within the

def‌inition of property in certain statutes, and second, the issue arose as

1 Nigel Bankes & J Owe n Saunders, “Introduction” in Nigel Banke s & J Owen

Saunders, eds, Pu blic Disposition of Natural Resources (Calgary: Canadian Insti-

tute of Resource s Law, 1984) at v [Bankes & Saunder s, Public Disposition].

PUBLIC LANDS AND RESOURCES LAW IN CA NADA150

to whether, and precisely how, the general law of property applied to

specif‌ic dispositions.2

Though scholars have approached these issues in a variety of ways,

a classif‌ication that runs through the literature either explicitly or im-

plicitly is one that identif‌ies,

1) ownership or traditional property interests,

2) contractual interests, and

3) statutory interests.3

Thompson does this explicitly.4 Barton’s approach is more functional

than conceptual, but the same three categories can be identif‌ied in his

analysis of statute-created property rights in common law systems.5

The Supreme Court of Canada in Saulnier v Royal Bank of Canada,

where the issue was whether a federal f‌ishing licence was “property”

or “personal property” for the purposes of the federal Bankruptcy and

Insolvency Act and the Nova Scotia Personal Property Security Act, dis-

cussed three interpretive perspectives for determining whether the

f‌ishing licence was property. These are: “The Traditional ‘Property’ Ap-

proach,” “The Regulatory Approach,” and “The ‘Commercial Realities’

Approach.”6 While this typology is helpful, the question remains: what

analytical approach and specif‌ic criteria should be used to classify par-

ticular statutory dispositions?

B. THE IMPORTANCE OF STATUTORY

INT ER PR ET ATION

As scholars and judges have pointed out, it is important to remem-

ber that whether a statutory interest in public lands is property, and if

so, what kind, is always a question of statutory interpretation.7 Barton

asks: what does the statute say?8 But it is signif‌icant th at Binnie J in the

Saulnier case a nd Professor Barton were referring to different categories

2 Barry B arton, “Property Right s Created under Statute in Common L aw Legal

Systems” in Ailee n McHarg et al, Property and the L aw in Energy and Natural

Resources (Oxford: Oxford Universit y Press, 2010) 80 at 80–81.

3 Saulnier v Royal Bank of Cana da, 2008 SCC 58 [Saulnier].

4 Andrew Thompson, “Le gal Characteristic s of Disposition Systems: An O ver-

view” in Ban kes & Saunders, Public Disposition, above note 1, 1 at 6–10.

5 Barton, above note 2.

6 Saulnier, above note 3.

7 Ibid at para 16.

8 Barton, abovenote 2 at 82.