Crown Ownership of Water in situ in Common Law Canada : Public Trusts, Classical Trusts and Fiduciary Duties

2011 ◽  
Vol 51 (3-4) ◽  
pp. 493-519
Author(s):  
Jane Matthews Glenn
Keyword(s):  
Common Law ◽  
Public Law ◽  
Clear Understanding ◽  
Private Law ◽  
Fiduciary Duties ◽  
The Public ◽  
Management Regime ◽  
Functional Equivalent ◽  
The Common

A clear understanding of the private law rules relating to water in situ is a necessary pre-condition to the success of any public law management regime. This article thus examines the private law rules applicable in the common law provinces to determine if there are functional equivalents to Québec’s private law principle of res communis and its statutory notion of State “custodianship”. It concludes that while there is no direct functional equivalent to the concept of res communis, there is an acceptance — almost by default — of Crown ownership of water in situ, an acceptance reflected in the legislation of the western provinces. However, this Crown ownership is not full and absolute but rather limited, more in the nature of “custodianship” than “ownership”. This conclusion follows an exploration of three equitable institutions — the public trust, the classical trust and fiduciary duties. In each case, the argument for limitation is difficult, but not impossible, to make.

scholarly journals THE NEGLIGENCE LIABILITY OF PUBLIC AUTHORITIES FOR OMISSIONS

2019 ◽  
Vol 78 (3) ◽  
pp. 545-569
Author(s):  
Tom Cornford
Keyword(s):  
Common Law ◽  
Public Law ◽  
Public Authority ◽  
Duty Of Care ◽  
Public Authorities ◽  
The Public ◽  
The Common

AbstractIn this article I address the question of whether the omissions principle – the principle that the common law does not impose liability for omissions – applies with the same force in negligence cases involving public authority defendants as in cases involving private defendants. My argument is that the answer depends upon the answer to a prior question: can a duty of care be based upon the public law powers and duties of a public authority? In making my argument, I refute the views both of those who insist that a claim in negligence against a public authority can be rejected purely because it relates to an omission not falling within one of the standard exceptions to the omissions principle and of those who insist that such a claim can succeed while at the same denying that a duty of care can be based on a public authority's public law powers and duties.

Public/Private

2020 ◽  
pp. 466-480
Author(s):  
Jean-Bernard Auby
Keyword(s):  
Essential Feature ◽  
Common Law ◽  
Public Domain ◽  
Public Law ◽  
Roman Law ◽  
Private Sphere ◽  
Private Law ◽  
The Public ◽  
Private And Public ◽  
The Relationship

This chapter examines the distinction between public law and private law. It stresses the importance of being aware of this difference between the public/private and public law/private law dichotomies. The public–private divide is universal even if, from one society to another, it can be conceived differently in certain ways. All human communities have an idea about the relationship between the private sphere and the public domain. By contrast, the distinction between public law and private law is not universal. It may be ignored, rejected, or confined to a very limited sphere of operation as, traditionally, in common law systems. Conversely, the public law/private law distinction may be understood as an essential feature of the juridical world, as was the approach of Roman law, inherited by the continental legal systems.

Administrative Law

2021 ◽  
Author(s):  
Timothy Endicott
Keyword(s):  
Judicial Review ◽  
Common Law ◽  
Administrative Law ◽  
Public Law ◽  
First Century ◽  
Government Agencies ◽  
Private Law ◽  
The Subject ◽  
The Common ◽  
Twenty First Century

Administrative Law explains the constitutional principles of the subject and their application across the range of twenty-first-century administrative law. The focus on constitutional principles is meant to bring some order to the very diverse topics with which you need to deal if you are to understand this very complex branch of public law. The common law courts, government agencies, and Parliament have developed a wide variety of techniques for controlling the enormously diverse activities of twenty-first-century government. Underlying all that variety is a set of constitutional principles. This book uses the law of judicial review to identify and to explain these principles, and then shows how they ought to be worked out in the private law of tort and contract, in the tribunals system, and in non-judicial techniques such as investigations by ombudsmen, auditors, and other government agencies. The aim is to equip the reader to take a principled approach to the controversial problems of administrative law.

scholarly journals Rethinking the Public-Private Law Divide in the Age of Governmentality and Network Governance

2018 ◽  
Vol 5 (2) ◽  
pp. 119-143 ◽  
Author(s):  
Lukas van den Berge
Keyword(s):  
Common Law ◽  
Modern Art ◽  
Public Law ◽  
Network Governance ◽  
Private Law ◽  
Public And Private ◽  
The Public ◽  
European Public ◽  
Present Context ◽  
Stateless Society

This article presents an analysis of the ways in which the public-private law divide is envisioned in French, English and Dutch law. First, it explains why French law’s tradition of regarding public and private law as ‘two separated worlds’ is now outmoded, failing to live up to the present trends of ‘governmentality’ and ‘network governance’ determining the modern art of government. Subsequently, it argues that the holistic idea of English ‘common law’ as French law’s conceptual counterpart is equally outmoded, with its ideology of ‘self-government’ within a ‘stateless society’ being out of touch with an age of managerialism and ‘governmentality’ in which the state withdraws from society only to increase its grip on societal processes. Finally, it proposes a paradigm recently developed in Dutch doctrinal thought as an attractive theoretical framework for structural innovations that may contribute to a stable and legitimate system of modern European public law that attunes to its present context without being alienated from its central classical tenets – be it either those rooted in the French or the English tradition.

scholarly journals The possibilities of consensual resolution of judicial conflicts with the Public Administration

2018 ◽  
Vol 18 (72) ◽  
pp. 31-50
Author(s):  
Gabriel Perlingeiro
Keyword(s):  
Public Interest ◽  
Judicial Review ◽  
A Priori ◽  
Public Law ◽  
Clear Understanding ◽  
Private Law ◽  
Public Authorities ◽  
Public And Private ◽  
The Public ◽  
Legal Studies

This text endeavors to define the theoretical limits of the capacities of the public administrative authorities to reach consensual solutions to disputes within the framework of judicial review. It is motivated by the lack of a clear understanding in Brazilian law of the border area between the legal relations of public and private law involving the public authorities, and the expressions “inalienable right” (or “inalienable interest”) and “public interest” as shown by the inexplicable asymmetry between what the public administrative authorities can do within a judicial proceeding and outside one. Based on a comparative study of common law versus civil law legal systems and an examination of the treatment of the subject in Brazilian statutes, case law and legal studies, this article reviews the relationship between the public interest and inalienability, demonstrating, in conclusion, that the possibility of the administrative authorities to enter into settlements or follow similar practices should not be rejected a priori, even in cases of public law. According to the author, there are three possible scenarios in which public administrative authorities may resort to consensual dispute resolution in the context of the judicial review: in private-law relationships, in public-law relationships with respect to the exercise of administrative actions prescribed by law and public-law relationships with respect to the exercise of discretionary powers.

10. Negligence: Duty of Care—Public Bodies

2017 ◽  
Author(s):  
Mark Lunney ◽  
Donal Nolan ◽  
Ken Oliphant
Keyword(s):  
Common Law ◽  
Public Law ◽  
Public Authority ◽  
The Political ◽  
Private Law ◽  
Public Authorities ◽  
Public And Private ◽  
The Public ◽  
Economic Considerations ◽  
Public Bodies

This chapter focuses on the negligence liability of public authorities. It discusses how negligence actions against public bodies may have both public and private law dimensions. The discussion of the public law dimension focuses on the mechanisms that have been employed in response to concerns about the political nature of some public authority decisions, and the fact that those decisions frequently involve the balancing of social or economic considerations, and the interests of different sections of the public. The discussion of the private law dimension of negligence actions against public bodies considers policy reasons for limiting the liability of public bodies and statutory responsibilities as a source of affirmative common law duties. The chapter concludes with a consideration of proposals for reform of the law in this area.

Administrative Law

2018 ◽  
Author(s):  
Timothy Endicott
Keyword(s):  
Judicial Review ◽  
Common Law ◽  
Administrative Law ◽  
Public Law ◽  
First Century ◽  
Government Agencies ◽  
Private Law ◽  
Complex Field ◽  
The Subject ◽  
The Common

Administrative Law explains the constitutional principles of the subject. It brings clarity to this complex field of public law. The common law courts, government agencies, and Parliament have developed a wide variety of techniques for controlling the enormously diverse activities of twenty-first-century government. Underlying all that variety is a set of constitutional principles. This book uses the law of judicial review to identify and to explain these principles, and then shows how they ought to be worked out in the private law of tort and contract, in the tribunals system, and in non-judicial techniques such as investigations by ombudsmen, auditors, and other government agencies. The aim is to equip the reader to take a principled approach to the controversial problems of administrative law.

Can Gaius Really Be Compared To Darwin?

2000 ◽  
Vol 49 (2) ◽  
pp. 297-329 ◽  
Author(s):  
Geoffrey Samuel
Keyword(s):  
Child Abuse ◽  
Common Law ◽  
Legal Reform ◽  
Social Benefits ◽  
General Question ◽  
Private Law ◽  
Public And Private ◽  
The Public ◽  
The Face ◽  
The Common

One might, by way of introduction, return to the general question. What is one to make of the debate between Professor Birks and the apparent schematic disorder of the common law? One immediate response is to consign this whole debate to a past age. Those who believe that meaningful legal reform can be achieved through classification risk being ridiculed.7 Such a view is understandable. The amount of intellectual energy spent on emancipating unjust enrichment from the categories of contract, tort and equity seems to bear little relation to the actual social benefits detectable in the restitution decisions themselves.8 And the experimentation with the public and private law dichotomy appears to have proved of little worth in the face of such social horrors as child abuse.9

The Common Law in Australia: Its Nature and Constitutional Significance

2004 ◽  
Vol 32 (3) ◽  
pp. 337-355 ◽  
Author(s):  
Leslie Zines
Keyword(s):  
Public Policy ◽  
Common Law ◽  
Public Law ◽  
Federal Law ◽  
Contemporary Debate ◽  
Policy Paper ◽  
Law And Policy ◽  
National University ◽  
The Subject ◽  
The Common

This article originally was published as a Law and Policy Paper. The Law and Policy Papers series was established in 1994 by the Centre for International and Public Law in the Faculty of Law, the Australian National University. The series publishes papers contributing to understanding and discussion on matters relating to law and public policy, especially those that are the subject of contemporary debate. In 1999 the papers were published jointly by the Centre for International and Public Law and The Federation Press. This article is reproduced in the Federal Law Review with the permission of the original publishers.

User Property, User Rights, and User Privileges

2017 ◽  
Author(s):  
Pascale Chapdelaine
Keyword(s):  
Public Law ◽  
Copyright Law ◽  
Future Application ◽  
Private Law ◽  
The Public ◽  
Freedom Of Contract ◽  
Competing Interests ◽  
Regulatory Changes ◽  
Law And Policy ◽  
User Property

This chapter proposes two principles that should inform the development of copyright law and policy and of user rights. The first calls for more cohesion between copyright law, private law, and public law, and for less exceptionalism in copyright law. The second requires that the balance in copyright law be adjusted for its future application as a mediation tool between the competing interests of copyright holders, users, intermediaries, and the public. Instituting positive obligations for copyright holders in relation to users and steering freedom of contract toward the objectives of copyright law are necessary regulatory changes to rectify ongoing imbalances. The principle of technological neutrality should guide the judiciary in its application of copyright’s objective of promoting a balance in copyright law. The proposed guiding principles lead to the creation of a taxonomy and hierarchy of copyright user rights that take into account the myriad ways users experience copyright works.

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