The inclusivity of communal land tenure: a redefinition of ownership in Canada and South Africa?

Abstract

The nature of land tenure rights is defined in many different ways in different jurisdictions. One of the basic differences lies in the extent of exclusivity or inclusivity of land tenure, or what is called a "discourse of exclusion". Another lies in the distinction between the "idea of property", premised by individualism, and the "institution of property", preoccupied with compromise, relationality and the tension between individual and community. The purpose of this article is to compare the inclusivity or exclusivity of property in South Africa, where the law is predominantly civilian in nature, with Canada, a predominantly common law jurisdiction. In both jurisdictions communal land tenure has been incorporated in their property systems of predominantly civil law and common law respectively. Canada was chosen for this comparison because of the remarkable similarity that, in both jurisdictions, it required three different decisions by three different courts before the matter was finally settled, namely the Delgamuukw decisions in Canada and the Richtersveld cases in South Africa.