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THE PURPOSES THAT BOUNDARIES
SERVE
URL: http://www.spatialgovernance.com/spatial/boundaries/620-01.htm
© John S. Cook - Created on 12 July 2004
Last modified
05/04/11 11:01
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INTRODUCTION |
Spatial Orientation
and Governance in Society
Practically all societies develop a spatial knowledge about what
behaviour is permitted and what is taboo in particular places.
The ability to generate knowledge and maintain understandings at
international, interstate, and local levels is fundamental in
achieving a spatial orientation to human activity. Just as
information and communication are essential to organisation, so
is spatial information and its communication essential to
spatial organisation in society.Oral and Written Communication
Hunter-gathering societies had customary laws relating to their
lands. They kept the knowledge of these laws alive through their
oral traditions. Nowadays, these oral traditions provide a basis
for the recognising rights of indigenes throughout the world.
Australia now recognises these customary laws through native
title legislation.
Cadastral surveying has origins that go back
as far as the invention of writing. The spatial organisation of
early 'hydraulic' civilisations involved sophisticated
arrangements for their management and control. Until recently,
much of the understanding of cadastral organisation in the
ancient world centred on Egypt and many surveying text books
reflect this understanding. However, more modern archaeological
research suggests that the area around modern day Iraq, Syria
and Turkey may have been a cradle of civilisation and cadastral
organisation.
Controlling by Enrolling
In French, cadastre is a 'register of the survey of
land', cadastrer means 'to survey', cadastral
refers to a land register, and côntroler means - among
other things - 'to register, to put on rolls, to enrol'. Thus,
the etymology of these words shows a clear association between
ideas about controlling and enrolling.
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With the advent of parchments and papers as a
medium on which records could be kept, the rights and
obligations of people in respect of land came to be recorded on
rolls. Thus property rolls for taxation purposes became
important to government finance generally. However, in
establishing an 'address' in the physical sense for land, the
public record became an address in a conceptual sense for other
things, such as availability of personnel to form a militia.
Nowadays, this use of an identifiable land parcel as a
conceptual address for other information pertinent to governance
generally, as in delivery of postage and other goods and
service. This multipurpose role of the cadastre forms the
rationale for what is known nowadays as a multipurpose cadastre.
Historical Inquests into English Land
Tenure Arrangements
Understandings about English history owe much to two inquests
about land holdings for taxation and general purposes of
administration. William 1 - the Conqueror - commissioned an
inquest in 1086 known as the Domesday Survey. Edward 1
commissioned similar surveys between 1274 and 1284 that were
contained in records known as the Hundred Rolls. The 'hundred' was an
administrative area - a subdivision of a County - and thought to
comprise about 100 living areas known as Hides.
Lord Chancellor and Master of the Rolls
In the UK, the
Lord Chancellor is the most senior judicial officer and
responsible for the Land Registry Office and the Public Records
Office. Historically, the Lord Chancellor was the adviser to the
monarch on delivery of justice through the court system.
Maintenance of some public records is a responsibility of the
third most senior judicial officer known as
Master of the Rolls. The title has fourteenth century
origins and reflects the ancient use of rolls, especially in
keeping records about land and proceedings of the king's courts.
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References:
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BOUNDARIES - TERRITORY,
CONCEPTS AND AUTHORITY |
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Pervasiveness of Spatial
Terminology
People can relate in a physical sense to organising or arranging
tangible things into separate physical spaces, compartments,
pigeonholes or parcels. This division of space implies some
understanding of the limits or boundaries of these divisions. However,
people
can also envisage the arrangement, categorisation or classification of
information and ideas using allegories of space and time. In other
words, they can imagine the placement of intangible things - such as
the things that people have in mind - into imaginary space. These
issues become especially relevant in linking ideas about surveying and
mapping with other information.
Spatial terminology is pervasive
and intimately bound up in the logic and coherence of language used to
describe and interpret things and events of general and scientific
interest. It is not unusual to speak of:
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'fields' or 'areas' of study
or interest - which open up Taxonomies, Categorizations, Classifications,
Categories, and Directories
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'topics' - with etymological links
to ‘topical’, ‘commonplace’ and ‘common ground’: and to words prefixed
by 'topo' as in ‘toponymy’ or place
names: ‘topology’ and ‘topography’
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historical study concerns ‘turning
points’, ‘watersheds’ and milestones in human experience
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‘Things’ find expression generally
in nouns and noun phrases. Events, happenings or actions find
expression through verbs. Since things and events occur somewhere in
physical, mental or social space, the association of nouns, verbs and
space becomes deeply embedded in the language.
As an example, the word ‘topic’
has
‘Trivia’ has connotations and etymological links with ordinary
conversation that takes place before people branch and go their
separate ways. Similarly, . Personal and mass communication occurs in
channels, along pathways or super highways. |
Logic Set theory and
Venn diagrams explicitly acknowledge that meanings of words and
phrases and classifications of things as mental spaces that may be
mutually exclusive, or overlapping or layered. Fuzzy logic explicitly
acknowledges the fuzzy or inexact boundaries that exist between how
people may be inclined to classify words and phrases.
Fuzzy Boundaries
Creating Space
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References:
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IMPORTANCE OF BOUNDARIES TO A RULE
OF LAW |
The Idea of a Rule of
Law
In essence, the idea inherent in a rule of law is that people
can know the law and be guided by it. Since legal rules differ on
either side of a legal boundary, knowledge about boundaries
becomes an essential part of the information needed to sustain
operation of a rule of law. People need to know not only what are
are permitted to do but also the place where that permission
applies. These rules become more complex to cope with requirements
for 'sustainable development' in the use of resources in the
natural and built environments. Accordingly, description of land
for legal purposes becomes increasingly complex to meet the ideal
of a rule of law.Importance to Human Rights
The preamble to the United Nations Universal Declaration of
Human Rights the (UDHR) expresses an international consensus
that human rights should be protected by a rule of law. The UDHR
refers at s.17 to rights regarding property and at s.27(2) to
ownership of intellectual property as fundamental human rights.
Occupying space and accessing resources is essential to human
survival. Accordingly, denying a person of a right to occupy
space somewhere is to deny a fundamental human right to
exist. Importance to
Government
The idea of a rule of law is fundamental to modern government.
The framework of cadastral boundaries as shown on official
cadastral maps serves not only property transactions but also a
variety of additional administrative functions. Thus, preserving
knowledge of the boundaries of Queensland is important in
applying the laws of Queensland. Similarly, the electoral system,
depends on knowledge of electoral boundaries; local government, on
local government boundaries; and so on. The
Survey and Mapping Infrastructure Act 2003 deals, among
other things, with boundaries of the State and internal administrative boundaries. |
Importance to Economic Development
A rule of law is also important to the conduct of commerce.
Organising rights about property in ways that become more
conventional or standardised - thus involving fewer unnecessary
variations in understandings and procedures at the local level -
is important in reducing the complexity of transactions at
regional and global levels. Wider geographical reach provides
greater opportunities, for good and bad to occur. Good things
can occur if wider opportunities for trade benefit local people.
Outcomes are less desirable if wider geographical reach allows
undue exploitation of local people.
Recent writings of Hernando de Soto relate
real property institutions and cadastral organisation to
economic development. De Soto points out that the capacity to
specify rights to land is important in developing a capacity to
govern more generally, especially in allowing equitable forms of
local government taxation.
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References:
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BOUNDARY CLASSIFICATIONS |
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Bases for Classification of
Boundaries |
Examples |
| Classification According to
Purpose |
| Jurisdictional boundaries - boundaries
between self-governing states and nations as recognised in federal
constitutions or in international laws |
| Administrative boundaries in government - identifying the
spatial limits to the jurisdiction of - electoral boundaries, local
government boundaries, and the administrative jurisdictions of
various government agencies |
| Non-government administrative boundaries -
identifying the spatial limits of various non-government activities - as
in commercial, sporting and recreational, ecclesiastical |
| Property boundaries - identifying the spatial
limits to rights of owners and co-owners to lots and common property |
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| Classification as Natural
or Artificial Boundaries |
| Natural boundaries - rivers, creeks,
watercourses, edges of mangrove or other vegetation, seashores,
edges of tidal waters, edges of cliffs, |
| Artificial boundaries - boundaries
identifiable on the ground at the time of their creation by survey
marks or other features of the built environment |
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| Classification as Fixed and
General Boundaries |
| Fixed boundaries - boundaries
supposedly fixed in their location by cadastral surveying methods |
| General boundaries - this term originated in
the UK and referred to a situation where customary knowledge of
boundaries between properties was preferable to attempting to fix
boundaries by cadastral surveying methods and records |
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References:
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S. Rowton Simpson, Land
law and registration, Cambridge: Cambridge University Press,
1976, Chapter 8 - 'Boundaries and maps', pp.125-158
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JURISDICTIONAL BOUNDARIES |
The Nature of
Jurisdictional Boundaries
Self-governing states have a general power to make laws within
the boundaries of their separate jurisdictions. These boundaries
have significance within the context of constitutional and
international law. The principal jurisdictional boundaries in
Australia involve State and federal territories. As Australian
colonies became self-governing, the Imperial legislation that
founded the new governments also described the new colonial
boundaries. generally, these boundaries were to be established
on the ground by inter-colonial agreement. Thus, the new
colonies had responsibility for land administration and
alienation up to the limits of the colonial boundaries. These
became known as State boundaries after federation in 1901.
Of particular significance is Australia's
maritime boundary. This involves the United Nations Convention
on the Law of the Sea (UNCLOS) together with other agreements
with Papua New Guinea, Timor and Indonesia. Moreover, the extent
of the States' jurisdictions is limited and the Commonwealth has
jurisdiction over significant off-shore areas. Thus some aspects
of management of the Great Barrier Reef fall within a federal
jurisdiction. As an example, the Great Barrier Reef Marine Park
Authority is an agency of the federal government. |
Maritime Boundaries
The establishment of maritime boundaries poses special problems
of border protection. Moreover, conventional marking on land
surveys is impractical at sea.
The Treaty of Tokehega (1983) provides a
written description of an international maritime boundary
between the New Zealand government acting on behalf of Tokelauan
people and the United States government representing interest in
American Samoa. Taking effect on 3 September 1983, the Treaty is
unusual in being written in both the English and Tokelauan
languages. The Treaty is of interest here in at least three
respects:
| The problem of translating Anglo-American
legal concepts into the Tokelauan language - a general
problem in dealing with the land rights of indigenes |
| The use of geodetic coordinates and
concepts that were probably not entirely understood by
the signatories - an indication of the faith placed in
surveyors and their technology |
| The brining together of concepts and
techniques of geodetic, hydrographic and cadastral surveying
to govern territorial sovereignty and proprietary
rights |
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References:
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ADMINISTRATIVE BOUNDARIES
IN GOVERNMENT |
The Nature of
Administrative Boundaries
Many agencies of government have statutory authority to
prescribe administrative areas to assist in performing
governmental functions. The Federal, State and Territory court
systems: Federal, State, Territory and local electoral systems,
local governments and the like have prescribed geographical areas
for various purposes.
The thing that administrative boundaries have
in common is that some rules that apply on one side of the
boundary differ from those that apply on the other side. In
these circumstances, the boundary of an administrative district
may become important in deciding whether or not a rule has been
broken and whether penalties apply or charges are due. The declaration of some administrative areas
is politically sensitive. Parliament often refers the fixing and
changing of these administrative boundaries to
independent commissions. Examples include electoral divisions and
local government areas. |
Administrative
Boundaries in Queensland
The Queensland Government enacted the Administrative
Boundaries Terminology Act 1985 to set out standards
appropriate to the description of administrative boundaries. The
Act described an 'administrative district' as 'an area of the
State declared or established under or for the purposes of any
Act, whether declared or established before or after the
commencement of this Act.'
The
Survey and Mapping Infrastructure Act 2003
at
s.72
repealed the Administrative Boundaries
Terminology Act 1985 and the Survey Coordination Act 1952.
Many of the repealed provisions were re-enacted in the
new and consolidated 2003 Act. In effect, the boundaries of the
State, its internal administrative areas and its further
subdivision into lots and road areas all have legal significance
insofar as the rules applying on one side of a boundary differ in
some way from the rules that apply on the other side.
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Reference:
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NON-GOVERNMENT ADMINISTRATIVE BOUNDARIES |
| many non-government
organisations adopt boundaries for purposes of their own administration.
Historically, ecclesiastical boundaries have
Sport |
Recreation and Sport
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References:
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PROPERTY BOUNDARIES |
Property Boundaries
Property boundaries arise initially between the State and a
private person in an original land grant. Other boundaries
emerge in roads and other lands retained by the State for public
purposes and as un-alienated State land. In many instances, State
and Commonwealth authorities hold lands as freehold land
registered in the freehold land register.
Boundaries Between Private Persons
Given a land grant from the State of freehold land to person A,
A may subdivide the land into two portions and transfer
one of the parcels to person B. In effect, this transfer
has created a boundary between A and B and is
subject to:
| legal requirements for written
documentation of the intentions of parties to a contract for
a sale of land |
| legal requirements for registration of
documents in a public register |
The Nemo Dat Principle
The legal principle - often expressed in the maxim of nemo
dat (or more fully as nemo dat quod non habet) - is
that no one gives who possesses not, meaning that no one can
give a title to something greater than what he or she possesses.
Thus a lessee may grant a sub-lease provided that the rights
contained in the sub-lease do not exceed the time, or the
conditions or the area of first lease. The Nemo Dat Principle
and Fixed Boundaries
A cannot lawfully subdivide land in a way that
encroaches on the rights of B. Similarly, B cannot
lawfully encroach on the rights of A. The boundary created
by the transfer from A to B remains fixed in
location until either:
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the parties owning land on
either side of a boundary agree to a change in its location by
reconfiguring their respective lots; or |
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some action authorised by law
prevails to require a change in its location - notably title
by possession |
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Statute of Limitations and Title by Possession
Briefly, two situations arise, each with their own implications
for public policy:
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a new owner can become entitled to a whole parcel -
which involves a new owner without changes to existing boundaries |
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a new owner may become entitled to part of a parcel
- which involves both a new owner and changes to boundary
locations |
A conflict can arise between public policy
pertaining to the Statute of Limitations and public policy
regarding land registration. Different jurisdictions can resolve
this potential for conflict in different ways. |
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References:
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VERTICAL AND STRATIFIED BOUNDARIES |
Geodetic Considerations in
Cadastral Surveying
Usually, cadastral plans and maps indicate a pattern of land
parcels and entitlements over separate areas of the earth's
surface. In terms of plane geometry, boundaries are vertical
planes that intersect a horizontal plane in lines as shown on
plans and maps. In terms of a global geometry, boundaries are
surfaces passing through lines on the ground towards the centre
of the earth. The lines on the ground form part of a curved
surface that requires accommodation of some distortion to allow
representation on the plane surface of a plan or map. In other
words, cadastral surveying over extensive areas requires
consideration of geodetic surveying problems and map projections.
Depth and Height of Entitlements
The maxim cuius est solum eius est usque ad coelum et ad
inferos implies ownership of land from the centre of the
earth to the heavens. A trespass can involve an incursion into
airspace above the land or a tunnelling or mining operation
beneath the surface of the land. Ownership of airspace becomes a
matter of practical possession in economic terms. Otherwise, an
aircraft flying overhead or even a satellite becomes a trespass.
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Public Policy
For Efficient Resource Use
Public policy needs to address a number of issues involving
rights to land above and below the surface of the earth to
achieve a more efficient use of resources. These issues include:
| The separation of surface and subsurface
rights to allow mining of mineral and other resources |
| The permanent occupation of above ground
and underground space for building projections, car parking,
and the like. |
| The temporary occupation of space above or
underground belonging to another person to allow access for
construction or maintenance |
Queensland law now admits considerable variety
in possible arrangements in dealing with freehold land through
registration of building format and
volumetric format plans
under the Land Titles Act 1994. A
statutory right of user
is available under the Property Law Act 1974.
The law
related to mining allows mining tenure to exist underground with
and without rights to the surface.
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References:
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John S. Cook and Sep L. Humphries,
'Trespass into airspace', Australian Surveyor, Vol.3 No.1
(March 1993) pp.32-38 |
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BOUNDARY SURVEYING |
Boundary Creation
and Reinstatement
An important function performed exclusively by cadastral
surveyors is to mark and describe lands to allow particular
property transactions to proceed. Under the principle of nemo
dat, a surveyor needs to reinstate the existing boundaries
of his client's land before doing any further work in
reconfiguring boundaries. In early colonial and developmental
stages, a surveyor's client was likely to be the government.
Experience showed that people performing
cadastral surveying functions needed both skills and integrity
in operating as an agent of government. This led to systems of
licensing persons who were suitably qualified to perform
cadastral surveys on making original grants of land from the
Crown. The need extended to controls over persons making surveys
in subsequent dealings with land after it had been granted as
freehold land from the Crown.
Origins of Cadastral Surveying
Ancient writings from Egypt and the Roman times provides
evidence of rope-stretchers and land measurers. The Roman term 'agrimensor'
remains in use in Spanish- and Portuguese-speaking countries.
Some evidence suggests an earlier and even more significant
early cadastral history occurred in area around modern day
Iraq, Syria and Turkey.
Cadastral Surveying
and British Colonisation
The British government oversaw numerous colonisation ventures
that involved significant territorial expansions. Surveying
technology generally improved to meet the demands of these
maritime and colonial ventures. Colonisation introduced new
challenges of land administration and land alienation over extensive
new areas. Many of the procedures associated with modern
cadastral surveying has its evolution in this period of active
British colonisation.
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Forms of
Administration
The forms of administration in early colonisation usually
saw appointment of three important officers:
| a Governor with a Great Seal of the Colony
to make orders, declarations, official appointments, grants
of land and the like. |
| a secretary to the governor to run an
office to support the creation of documents and the keeping
of records |
| a Surveyor-general as an agent of the Crown
to attend, among other things, to the the technical
description of lands and territories for purposes of legal
documentation |
The Problem of Surveying Standards
However simple it may have seemed to lay out land parcels on
the ground and describe what was laid out in written
documentation, experience showed that it was in fact more
difficult to do than most people imagined. A system of proving
the competence of surveyors emerged at an early stage .
Initially this was done within a public service structure as a
condition of appointment. However, other concerns such as
continuity of employment for salaried officers was a political
concern. Out of this grew a practice of licensing surveyors to
act on behalf of government in creating, perpetuating and
assessing evidence of boundary location.
In practice, it is not so much licensing
surveyors per se that overcomes the problems of boundary
evidence. What matters more is the knowledge, skills, attitudes
and diligence that surveyors bring to bear on their task.
Understanding the purpose and rationale behind rules and
conventions is important to efficient operation of a
cadastral system. There is nothing necessarily professional
about blind obedience to rules that may be inappropriate in
particular circumstances. |
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References:
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GUARANTEE OF BOUNDARIES |
A Cautionary Note
A belief has grown in connection with the system of cadastral
boundaries in Australian jurisdictions and in some other places,
that the system of surveyed boundaries affords some form of
guarantee. The idea that boundaries may be fixed as a matter of
principle does not always mean that they can be regarded as fixed
in practice. The problem becomes one of how can it be decided that
a location thought now to be a boundary is actually the location
in which the boundary was first created.The idea of a 'fixed' boundary follows from
the nemo dat principle. Provided that the original
location of a boundary can be identified and determined with
some certainty, there can also be a reasonable certainty
that the land of an adjoining owner will not be encroached upon
in subsequent transactions. Conversely, uncertainty regarding
the original location of a boundary increases the risk that a
person may encroach unknowingly on the land of another. But
therein is the nub of the problem for how is it possible to
introduce certainty into a situation that is inherently
uncertain.
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The Problem of
Uncertainty
The problem of uncertainty is essentially one of being without
information. The only way to overcome being without
information is to supply information. New information might come
from three sources:
| the finding of new information or evidence
- but if surveyors have been diligent, the chances of
finding new and relevant evidence may be remote |
| the reconsideration of what can be inferred
from existing information or evidence - a matter of honesty
and reasonableness as a professional witness in not
manufacturing evidence one way or another |
| a declaration by an ultimate authority concerning
the 'truth' of the matter - and in recognising the court
system as an ultimate authority, the duty of the surveyor is
to understand the precedent that courts are likely to follow
arriving at new decisions |
In large measure, this identifies important
professional responsibilities of cadastral surveyors. |
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References:
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