Supreme Court of Nova Scotia rules systemic racism played a part in keeping legal ownership out of reach
A decision that allows a Black Nova Scotia man to get closer to his goal of finally getting title to property his family settled more than 100 years ago not only helps others like him, but acknowledges that systemic racism was behind why he was denied clear ownership in the first place.
Stewart McKelvey Law partner Scott Campbell, one of the lawyers who worked on Downey v. Nova Scotia (Attorney General), says the decision comes at an important time, when there has been more focus on systemic racism and historical wrongs against racial minorities in Canada, in particular against Black and Indigenous people.
In the early July decision, Nova Scotia Supreme Court Justice Jamie Campbell (no relation to lawyer Campbell) said African Nova Scotians “have been subjected to racism for hundreds of years” and said the provincial government has been applying the law incorrectly when considering land claims.
Racism “is embedded within the systems that govern how our society operates,” the decision said. “That is a fundamental historical fact and an observation of present reality.”
Campbell the lawyer says that while this current focus on systemic racism probably played no role in deciding the law in this case, the timing didn’t hurt.
“I would like to think that even if this matter had been brought before the court 10 years ago, the court’s decision would have been exactly the same,” he says. “Having said that, I don’t think we would have seen such a powerful and profound statement as was provided by the court in its decision.”
Campbell said that while the decision deals with one piece of property, it sets a precedent for changing the way future land claims in predominantly Black communities in Nova Scotia are examined.
And obtaining clear title to a piece of property is more than just establishing a right, Campbell says. Not having title has consequences that can exacerbate the cycle of poverty. For the person seeking title, it is about the inability to obtain a mortgage, to develop the land, to build houses, to pass it on to children, he says. For a municipality, it can affect the ability to collect taxes, which creates infrastructure issues.
The plaintiff, in this case, Christopher Downey, grew up on the property on which his home now sits in North Preston, one of the province’s historic Black communities, just outside Halifax. Downey and his wife, Christesline, moved to Toronto and returned to North Preston 19 years ago to build a home on settled on by his great-grandfather in 1913.
However, Downey doesn’t legally own the land. The issue dates to the 18th century, when plots of land were handed to Black settlers, including Loyalists who fought alongside the British during the American Revolution and former slaves who sought refuge after the War of 1812.
White settlers who received land were given deeds to those properties, but Black settlers (who generally got inferior, more infertile plots) were never given legal title.
In 1963, the provincial government introduced the Land Titles Clarification Act, legislation meant to provide Black Nova Scotians in designated Black communities a simpler and less expensive way to obtain deeds. The province also set aside $2.7 million to help residents clarify title to their land.
However, Downey’s application for title to the land his ancestors settled was denied in the fall of 2019 because he had not lived on the property for 20 consecutive years.
Campbell says “It seemed wrong that the minister and his department could unilaterally impose a standard — the 20 consecutive year provision — “in the absence of there being any authority to do so under the statute, and in the absence of any regulations that would permit that.”
And more profoundly, he says, “the imposition of the standard seemed to be entirely inconsistent with the purpose, the history and the context of the statue in question.” While the Land Titles Clarification Act may be seen by some as a real estate matter, “in my view it is a piece of human rights legislation that was enacted in the 1960s in direct response to historical injustice.”
Campbell adds that it is not entirely clear how the 20-year standard came about, the provincial department involved with these claims said in evidence before the court that it had been applying that standard to all applications under the LTCA since at least 2015.
Justice Campbell noted the LTCA “contains no reference at all” to a person being required to prove they have lived on a property for 20 years to get title to it. “Consistent application of an unreasonable standard cannot make it reasonable,” Campbell wrote in his decision.
Iain Rankin, Nova Scotia's Minister of Lands and Forestry, the department responsible for issuing land title, said in a statement the government accepts the court's decision. “We will continue to look for ways to streamline this process and remove barriers wherever possible,” the statement said, and the government will be reviewing previously denied applications.
More than 360 claims have been made since 2017, and the owners of 130 parcels of land have been awarded clear title. Rankin said it is unclear how many claims were denied based on residents being unable to prove they had lived on a property for 20 consecutive years.
Campbell, the lawyer for Downey, said the adverse possession rule is a very long-standing doctrine in common law, though one very difficult to establish since it typically is about taking property away from the rightful owner.
However, he says, “that is the wrong standard to be applying in any event, because the LTCA is not about these individuals [the Downeys] trying to take property away from the rightful owner, it’s about them clarifying that they are the rightful owner.
“It has been in their family for generations upon generations, so they should have had title to this land right from the outset.”
Campbell said that while the Supreme Court decision is a win for his clients, Downey and his wife have just cleared the first hurdle. Their application must be reviewed, using guidance from the decision on the 20-year rule. And after a public notice is printed in a newspaper, those who claim an interest in the land will be allowed to assert that interest. If there is no dispute, the Downeys will get clear title to the land.