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Property and the Law in Energy and Natural Resources$
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Aileen McHarg, Barry Barton, Adrian Bradbrook, and Lee Godden

Print publication date: 2010

Print ISBN-13: 9780199579853

Published to Oxford Scholarship Online: May 2010

DOI: 10.1093/acprof:oso/9780199579853.001.0001

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Property Rights Created under Statute in Common Law Legal Systems

Property Rights Created under Statute in Common Law Legal Systems

Chapter:
(p.80) 4 Property Rights Created under Statute in Common Law Legal Systems
Source:
Property and the Law in Energy and Natural Resources
Author(s):

Barry Barton

Publisher:
Oxford University Press
DOI:10.1093/acprof:oso/9780199579853.003.0004

Common law jurisdictions do not appear to have a generally accepted body of law for ascertaining whether the attributes of property ownership attach to permits granted under statutes. This chapter inquires into the way that different courts — mainly those of Australia, Canada, England, and New Zealand — have approached the matter, and into the way that we may expect the interaction between legislatures and courts in common law jurisdictions to proceed in the future. It is shown that the case law is not producing any consistent body of doctrine by which to determine whether a statutory resource permit has a proprietary character to it, or whether property law ideas can properly be used to construe it. The legislature often pays little attention to such matters; often its general pronouncements fail to deal with the diversity of disputes that parties bring to the courts. Given this legislative track record, it is interesting to discover that the courts are often reluctant to be entirely bound by the legislature's expressions of intention.

Keywords:   common law jurisdictions, property law, property rights, ownership, statutory resource permit, statutes

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