Class 1: Historical context of Land in Canada Flashcards
What were the three sets of laws relating to Canada when the europeans arrived?
Indigenous laws, common laws and civil laws
True or False: As the crown, sometimes the incidents charged to the tenures were more valuable then the services themselves.
True. The taxes they had to pay may have been higher/worth more then a peasant who was in a unfree tenure
If a person had a tenure in socage, what did these mean?
This made the tenant render agricultural service to his lord
Did the Royal Proclamation affect indigenous peoples?
Yes it dictated how land was to be governed
What is the significance of the Treaty of Paris?
In 1763 this treaty culminated in English Supremacy
What does feudalism mean generally?
That the crown is the owner of all the lands of the realm “held rights of the crown”
Put these medical society groups in order in regards to the tenurial system (who has the most rights)
Workers
Clergy
Nobility
Nobility
Clergy
Workers
What does the doctrine of tenure mean?
It means the individual and corporations hold interests in the land but do not have outright ownership as the crown does.
Basically means possession.
Why did people call the law of tenures “tumultuous” aka what does that mean?
It means it was confusing.
What does the concept of escheat mean?
Does this apply in Canada now?
It means the reversion of property to the state.
This happens in Canada as if someone dies without a will (intestate) the govvy takes the land.
What is a free tenure?
Free tenures were given to close friends of the crown like armed horseman.
What is a unfree tenure?
Given to tenants of lowly status like slaves.
Whats a fee simple?
“a permanent and absolute tenure in land with freedom to dispose of it at will
What is the significance of the Statute of Quia Emptores?
Got rid of subinfeudiation
The Statute Quia Emptores was an expression for freedom of alienation as a principle of public policy, basically guaranteeing the tenant the right to alienate land without the consent of his lord.
After this act only the crown could grant new tenures.
Why did people reform the law of tenures?
People were trying to evade taxes that were attached to the tenure by which they held an interest in land. Thus, the monarchs wanted to plug the conveyancing “loopholes” used to escape incidents of tenure
What is the type of tenurial incidents called wardship mean?
Wardship permitted the monarch to hold the lands of a tenant who died, leaving an heir under the age of 21. The monarch was entitled of the revenues produced by the lands until the heir came of age.
What is the doctrine of reception?
Each province has a reception date, and English statutes passed before the reception date are considered to be in force in the province in question unless they have been repealed or amended subsequently by the local legislature.
What is the significance of the Royal Proclamation of 1763?
The proclamation enshrined consent as the central principle that should govern Aboriginal settler relationships
The proclamation is seen as the foundation of the treaty relationship and was generally stated was a good thing
Grants natives’ possession but ownership to the crown
What is the significance of the Treaty of Niagara 1764?
The treaty of Niagara happened after the royal proclamation and confirmed Britain’s recognition of indigenous rights
Requirement of indigenous consent with respect to the land was significant in the royal proclamation and this re-affirmed this idea
What is allodial title?
Title that constitutes ownership that is independent of any superior landlord.
What is Tenurial title?
Tenurial title (Land tenure) is the legal regime in which a land is owned by an individual and is possessed by someone else who is said to hold the land, based on the agreement.
Basically a lease.
What is the doctrine of estates?
The doctrine of estates described the nature of the interest that is held, the sets of rights that landholders could hold.
It stated that individuals owned not the land itself, but estates in land where an estate was defined as a bundle of rights.
What is a freehold estate?
Ownership of the land/property
What is leasehold estates?
Leasing of the property (mere possession)
What is the very quick ratio of Drulard v. Welsh? It involved French titles.
Court recognized the continuing validity of French titles.
Why is feudalism a “big pyramid”
The king is at the top and dictates who gets land and who doesn’t. Ownership always goes to him
What does the word “tenure” mean?
Tenure means ‘to hold”
Once again, what is the doctrine of tenure?
The doctrine of tenure means individuals and corporations hold interests in land of the crown, and there is no outright ownership in common law
What does the term “free alienation of land’ mean?
It means freely transferring land
What is the concept of escheat?
The land goes back to the king if someone dies without heirs.
What does the term of franklamoign mean when you think about tenures? What type of tenure would they get?
They are people who are religious people. They would get a free tenure.
True or False: The statute Quia Emptores still regulates fee simple transfers of land today
True.
It is the Statute Quia Emptores which quite unnoticed-still regulates fee simple transfers of land today. Each transfer is merely a process of substitution of the transferee in the shoes of the transferor.
What is the concept of subinfeudation?
Subdivision of a feudal estate (basically subletting) by a tenant who in turn became a feudal lord over his tenants
State of Quia Emptores stopped what mostly?
Subinfeudation
After the statute of quid emptores instead of subinfudation, you had to do what?
After this act, who was the only person who could grant new tenures?
Substitute aka trade basically
The crown
What is fee simple?
Fee simple is absolute ownership
True or false, in modern times every transfer of land is a substiution
Yes technically a substitution of your rights
What does the term “incidents” mean in feudal times and tenure systems?
Taxes typically
Who had to pay the most taxes in the tenurial system?
People closest to the king, so free tenures not unfree tenures
What is the incident of wardship for tenures?
This is when they allowed the crown to hold lands of a tenant when they died, and the only heirs were under the age of 21. Once the heirs were 21, goes to them. Crown entitled to any benefit of the land when they were holding.
What is the incident of marriage for tenures?
Monarch could arrange a marriage for the individual by force.
When does escheat happen?
How does this typically happen in modern times?
Escheat for failure of heirs happens when a holder of fee simple estate died without a will (intestate) and there were no blood relatives
When someone dies intestate in modern times.
What is the doctrine of continuity?
It is when the English recognized past legal traditions from the French unless overturned by competent authorities.
True or false, in the 1700s English criminal law was lesser then French criminal law
Bonus– don’t stress if you know this, it’s stupid.
False. English criminal law superset French criminal law
Is aboriginal title tenurial?
If not, what is it?
No it is not tenurial.
It is sui generis.
What was the starting point HISTORICALLY for the recognition of Indigenous Rights?
The royal proclamation
What is meant by “held in free and common socage”
it means everyone owns their land, and the king does not own the land
What is one aspect that remains from the doctrine of tenurial?
The doctrine of escheat (intestate)
What does the doctrine of estates do big picture?
Set out the nature of rights you have when you have land
Which is superior: free hold estates or lease hold estates?
Free hold estates
What is a lease hold estates?
A lease basically.
