Private rights to public property: the evolution of common property in Canada.

• Author: Hamill, Sarah E.
• Position: Special Section on Social Movements and Progressive Justice

This article uses the recent Occupy litigation of Batty v. City of Toronto to argue that Canadian courts no longer have a robust understanding of common property and its attendant rights. The lack of judicial understanding of common property is hardly surprising given property theory's focus on private property, particularly individual private property. This article argues that rather than use the traditional analogy of governments holding common property in trust for the public, Batty relies on an analogy of common property which treats the government as an owner. The emergence of the latter understanding of common property can be traced to Supreme Court jurisprudence from the early 1990s. Although the government-as-owner analogy of common property was introduced in a concurring judgment, more recent Supreme Court decisions have since reiterated the analogy. Such an understanding of common property is a clear attempt to force all property into a private property model and emphasize the rights of owners above all other rights in property. This article argues that the government-as-owner analogy is problematic given its emphasis on the government's use of property rather than the public's benefit from common property and calls for a return to the trust analogy of common property.

En s'appuyant sur le recent litige << Occupy " dans l'affaire Batty c City of Toronto (Batty), cet article montre que le judiciaire canadien n'a plus de comprehension solide des biens communs, ni des droits qui y sont associes. Ce manque de comprehension judiciaire en matiere de biens communs est a peine surprenant compte tenu la focalisation de la theorie sur la propriete privee, et particulierement la propriete privee individuelle. Cet article soutient qu'au lieu d'utiliser l'analogie traditionnelle, selon laquelle le gouvernement detient les biens communs en fiducie pour le public, Batty se fonde sur une analogie qui considere le gouvernement comme proprietaire. L'emergence de cette derniere comprehension des biens communs peut etre retracee a la jurisprudence de la Cour Supreme du debut des annees 1990. Bien que l'analogie gouvernement comme proprietaire ait ete introduite par un jugement concurrent, des decisions plus recentes de la Cour Supreme l'ont reiteree. Une telle comprehension de la propriete est une tentative evidente de forcer tout le droit des biens dans un modele de propriete privee, et d'accentuer les droits des proprietaires par-dessus tous les autres droits relies a la propriete. Cet article soutient que l'analogie gouvernement comme proprietaire est problematique puisqu'elle met l'accent sur l'usage que fait le gouvernement des biens communs, et non les bienfaits publics qui en ressortent. L'article appelle ainsi a un retour a l'analogie fiduciaire des biens communs.

Introduction I. Kinds of Property and the Bundle of Rights II. Batty:. Parks, Protesters, and Private Property III. The Rise of the Government-as-Owner IV. Bringing Back the Public Conclusion Introduction

"How do we live together in a community? How do we share common space?" These questions opened Justice Brown's judgment in Batty v. City of Toronto and were prompted by the Occupy movement's "occupation" of a park in downtown Toronto. (1) Despite these opening lines, the decision in Batty does not deliver the promised discussion of common space. Instead, Batty repeatedly defers to private property rights or the rights of the city of Toronto in its role as manager of municipal parks. That is not to say that Batty reached the wrong decision but to say that Batty reached the right decision for the wrong reasons, and rather than taking common property rights seriously--particularly the public's right not to be excluded from such property (2)--the case upholds individual private property as the only acceptable way to think about property.

It is the purpose of this article to explore the state of common property in Canada. I argue that in cases dealing with issues of what would traditionally be understood as common property, such as streets and parks, Canadian courts have shown themselves to have a weak understanding of such property. By weak understanding, I mean that the courts have preferred to force instances of common property into a private property model rather than delineating what rights exist for common property qua common property. The resulting picture of common property emphasizes the state's role as regulator of such property or, less often, the impact of common property on private property rights. The unease that Canadian courts have with common property appears to stem from questions over ownership. I argue that this unease is hardly surprising due to two factors. First, the conventional categorization of property tacitly assumes that individually owned private property is the base-line model or original form of property. (3) Second, the conventional categorization's tacit assumptions about private property are compounded by the dominant theory of property as taught in law schools and promoted by academics. This theory, generally known as the bundle of rights theory, (4) has in recent years come to concern itself with questions of how best to define and recognize ownership of private property. (5) Put simply the bundle of rights theory assumes that if a person holds all of the rights then she is the owner of the property. (6) The question of ownership of common property is much more complex than ownership of private property because whatever rights there are to common property, they are shared among the population and between the public and the government. Rather than struggle with the complexity of common property, Canadian courts have sought to simplify the issue and force all forms of property into a private property model. (7)

There are two paradigmatic ways to understand common property. The first is the trust analogy whereby the common property is described as being held in trust by the government for the benefit of the public. The trust analogy has the same roots as the American public trust doctrine, but in Canada, the idea of a public trust is much weaker and less developed than in the United States. (8) Hence, to avoid confusion with the more powerful American public trust doctrine, I call the Canadian version "the trust analogy". (9) The trust analogy is one with a long history, (10) but this article argues that it has since been replaced with the government-as-owner analogy, where the government's use of the property is more important than the public benefit. The government-as-owner analogy first appeared in The Committee for the Commonwealth of Canada v. Canada and has since come to dominate discussions of common property. (11) These two paradigms often overlap but the key difference lies in the deference that the latter shows to the government "as owner" of the property.

Before I explore how Batty handled the issues of common property it is necessary to define common property and differentiate it from other kinds of property. In the first part of this article, I argue that the conventional "analytics" of property, (12) particularly the categorization of property, tacitly assumes that private property is the baseline model of property. In contrast to this, I argue that C.B. Macpherson's categorization of property and definition of common property avoids the emphasis on private property seen in the conventional understanding, and for this reason, I use Macpherson's definition of common property in this article. (13) The first section also argues that the dominant understanding of the bundle of rights theory is primarily concerned with the owner's use and control of his property, which is a definition better suited to private property rather than to common property. Taken together, the conventional categorization and theory of property struggle to understand common property as anything other than a subcategory of private property, (14) yet Macpherson's work shows that this does not have to be the case. The second part of the article examines the weakened understanding of common property in Batty and why, despite some initial reasons for optimism in the analysis of the property issues, the case ultimately defers to irrelevant private property concerns. Such an outcome is hardly surprising given recent Canadian jurisprudence on common property or potential common property issues. The third part examines this recent jurisprudence and argues that the courts have shown themselves as being unable to conceptualize the complexity of common property and have sought to reduce all forms of property to private property. The fourth section evaluates proposed solutions and argues for a greater emphasis of the public nature of common property.

1. Kinds of Property and the Bundle of Rights

   Property is a politically sensitive topic. (15) Thus, any discussion of property tends to be riddled with tacit ideological commitments rather than an examination of what actually happens. (16) Historically, the major point of contention in property was and remains the potential benefits and costs of private property. In the common law world, John Locke's belief that property emerged from individual action, served to justify the special role that the landed proprietor held in society, and thus, the benefits that accrued to those with private property. (17) Locke's theory also presents private property as something that predates government, (18) and fails acknowledge the role that others play in recognizing property rights and the fact that property can only exist in a system. (19) Clearly there is more to property than simply private property, but such is the power of private property that it dominates both the conventional categorization of property and the current understanding of the bundle-of-rights theory. That is to say, private property appears as the baseline or original model of property, while other forms of property appear as...