Geography, Property and the creation of Land Law: expropriation as a public law tool

This paper looks at competing ideologies of property in land and its forms of ownership by reframing the law of expropriation as a public tool for reimagining land use. It responds to question five in the call for papers which asks, how are the meanings of concepts core to key questions in contemporary land policy evolving and to what effect? Thinking through the law of expropriation as a public law tool that is utilized to manage erstwhile private property holdings challenges traditional categories of law which have property as a private law subject. To instead reveal the normative role of expropriatory powers within political and legal life as it relates to land and real property. With this paper I aim to carry out research that provides contextual, critical, and fulsome accounts of how principles of property law serve to create space by enabling and disenabling access to and ownership of property, whilst simultaneously creating propertied spaces. A correct naming of expropriation as a public law tool which is used to manage private property law interests aids legal academia and the bar alike because it correctly identifies the historical use and development of the principle, and the doctrinal details of permissible use in modern day Canada. Unfortunately, there has been a dearth of attention to expropriation until very recently with two Supreme Court decisions on the matter in this past year. This is an area of law that is of growing interest. Utilization of expropriation as a tool affords opportunities for radical rearrangements of property whilst simultaneously requiring transparency and accountability in how expropriatory power is utilized. My research is rooted in the area of property law which I explore from an interdisciplinary perspective. Interdisciplinarity for me is examined through both law and geography. Geographic thought arises in my work as a lens through which to name and interpret the spatiality of law. This is work that is in the area commonly called legal geography. In this paper geographic thought guides my work in the form of a methodology which I have adapted from the work of Charles F. Gritzner, a geographer (Charles F. Gritzner, “What is Where, Why There, and Why Care?” (2002) 101 Journal of Geography 38-40). Gritzner provides key research questions for geographic enquiry in human and physical geography and I adapt these to examine the potential for making overt and policy driven choices on chosen land ideaologies through the law of exprorpriation. Using a research framework that is grounded in geographic thought, rather than typical legal research questions, reveals the limitations of examining land and real property law through individual legal subjects (of private law, public law, property law, resource law, etc.). Places are complex and they encompass complex histories, colonial harms, property law rules, property norms, and societal expectations. These aspects can not be fully responded to through individual legal subjects, and certainly not through a narrow vision of property law as a solely private law subject.