Black History Month: Anti-Black Racism in Land Title Claims is Addressed in Downey v Nova Scotia

Note: February is Black History Month and as a Black contributor for TheCourt.ca, I value the opportunity to explore jurisprudence that deals with an issue of Black identity in Canada

So often, conversations about race and justice occur within the context of criminal law. However, the systemic nature of anti-Black racism and the discrimination that it exudes is prevalent in all areas of the law. In Downey v Nova Scotia (Attorney General), 2020 NSSC 201 [Downey], it is due to discriminatory practices in property law that the applicant Christopher Downey challenged the Nova Scotia government. Discrimination in property law is significant because the rights property law confers are fundamental to wealth generation and value creation. Ownership allows a person to sell or lease their property for monetary return or offer collateral for a loan. Without such rights, people are unable to effectively participate in the marketplace. A pervasive state of impoverishment may result if property rights are not initially given or continually denied. This becomes all the more insidious when specific communities are discriminatorily denied the benefits of property rights and fall into overwhelming poverty as a result.

This is what was at issue in Downey. In this case, Christopher Downey was attempting to claim title to land that has been in his family for over 100 years and on which he had built a house. No one in his family had legal title to confer to him because of the Nova Scotian government’s historic refusal to grant title to Black Nova Scotians. To right this historical wrong, Nova Scotia enacted the Land Titles Clarification Act, RSNS, C. 250, s. 1 [LTCA]. However, Mr. Downey’s application was denied because he had not lived on the property continuously for 20 years as per the standard for adverse possession that the Department of Lands and Forestry chose to apply to the LTCA. Mr. Downey challenged this finding, particularly the reliance on adverse possession, and asked that the Nova Scotia Supreme Court (“NSSC”) find the decision unreasonable on judicial review.

This case lays bare the way property law was used—and continues to be used—to marginalize Black Canadians. To fully understand this, this comment will first situate the case in its historical context

Historical Context: Property Law as a Sword

Black people have a long history in Canada, particularly in Nova Scotia. From 1750, Black life was settled in the province. The population was then boosted by three prominent waves of migration of people of African descent into the province: 1) Black loyalists to the British Crown following the American Revolution between 1782 and 1784; 2) Jamaican “Maroons,” people who escaped enslavement, brought to Nova Scotia before relocation to Sierra Leone; and 3) refugees from the War of 1812 and others who escaped enslavement from 1812-1815 (Sehatzadeh, 2008). Life as a Black person in Nova Scotia was rife with discrimination and, contrary to popular sentiment, often straddled the line between freedom and enslavement. Nonetheless, Black people made their way to Nova Scotia on promises of better fortunes than in slaveholding states south of the border. These promises included land and prosperity, especially so for loyalists who fought for the British. While White communities in Nova Scotia enjoyed large swaths of good, fertile land, Black people generally received about 1/10th the land afforded to White families (Beals v Nova Scotia (Attorney General), 2020 NSSC 60 [Beals], para 220). To make matters worse, the land was rocky and infertile and was, therefore, a challenge to live off of. Most pertinently, while White settlers in Nova Scotia received title to their land, Black settlers were given licenses and certificates not akin to legal title (Beals, para 22). The impoverishment of Black communities in Nova Scotia can be directly tied to this refusal to confer to them rights of land ownership.

These conditions forced the historic Black settlers to live on the margins. Moreover, the over 50 distinct communities, such as Africville and North Preston, faced intense prejudice. Much like the infamous Jim Crow South, Nova Scotia was deeply segregated into the 20th century. Many of the communities that Black people called home were left in disarray and subject to intentional destruction by the state. There is a story about one community that was not given a name but referred to as “The Avenue.” The Avenue was a Black community in Dartmouth, Nova Scotia. This area was separated from the larger White community in the city by a road, which was paved until it reached The Avenue, where it was left as dirt (Sehatzadeh, 2008). The road was not fully paved until 1988. The dump for the town was moved to The Avenue in the 1940s. The residents, who paid taxes like every other Nova Scotian, were not provided with running water until 1963 nor a sewage line until 1986 (Sehatzadeh, 2008). Education was not delivered equally to children from The Avenue. Their education was intended to take them to jobs that were mostly in the trades and they were not given the option for schooling that would lead to higher education (Sehatzadeh, 2008). The hardship of life in The Avenue was perfectly encapsulated by the following quote:

[The Avenue] was situated on the border of a White community but in many ways exist[ed] outside of the White community’s way of life. The contrast is the difference between two different worlds – one with all the advantages of White privilege and [the other] with all of the hardships attached to difference (Sehatzadeh, 2008 pp. 409-10).

The Avenue was not unique. This was life for Black Nova Scotians. To understand the context of Downey, it is important to recognize that property law and the treatment of the land by municipalities and the province institutionalized Black poverty in Nova Scotia and, in some cases, facilitated the erasure of their local history.  

Reconciliation through The Land Titles Clarification Act

In 1962, Premier Robert Stanfield established the Interdepartmental Committee on Human Rights (“ICHR”) to address the problems faced by Black Nova Scotians (Beals, para 24). The ICHR determined that one of the most appropriate means through which the government could help Black Nova Scotians was through entitlement to the land they had lived on for generations. Out of this determination came what is now called the LTCA in 1964, housed within the Ministry of Natural Resources. The LTCA was intended to give Black people a less complicated and less costly way of conferring title. A claimant began by submitting an application for certificate of claim. This application needed to include a description of the land and a statement about who previously claimed ownership or had an interest in the land (Downey, para 7). This requirement was intended to establish a familial tie to the property. Moreover, any person who may have had a lien, mortgage, or any other debt against the land in question needed to be identified and their names included in the application. The Minister was authorized to grant the certificate of claim on a case-by-case basis (Downey, para 9). Once the certificate of claim is registered, the public is notified through the newspaper. If anyone besides the applicant claims an interest in the land, they have three months to declare it. If there are no claims, the Minister must then confer to the claimants the certificate of title. The LTCA also gives discretion to the Minister of Lands and Forestry to determine how to objectively assess land ownership claims. As a test, the department has applied the same test used for adverse possession: it must be actual possession, open and notorious, continuous, and exclusive for at least 20 years (LIANS Nova Scotia). Between 1964 and 1990, only 13 land claims were approved vis-à-vis the LTCA and since 2017, even with an added financial investment into the process, over 360 claims were filed and only 130 have been awarded title (CBC News). It was clear that the remedial purposes of the legislation were not being achieved and instead created more financial burden and emotional distress for claimants.

It is within this historical context and the confines of this legislative scheme that Christopher Downey tried to claim title to 39 Beals Crescent in North Preston.

Downey v Nova Scotia: Christopher Downey’s Claim at 39 Beals Crescent

In 2017, Christopher Downey applied for a certificate of claim under the LTCA to land in North Preston on which he had lived since 2001. His claim was for the property at 39 Beals Crescent, a small part of a larger parcel of land. In his application, Downey talked about his family’s history on the land. His great-grandfather Peter Beals lived on the larger ten-acre lot in 1913 (Downey, para 16). The larger parcel of land was passed on to Peter Beals’ daughter and Christopher Downey’s grandmother, Lena. Lena and her husband James Downey Sr. built a house on the land and then got a certificate of title under the LTCA’s predecessor, the Community Land Titles Clarification Act, in 1970. The smaller portion of land, to which Christopher Downey claims he is entitled, was initially claimed by his uncle Texas Downey and remained separate from the entitled larger parcel belonging to Lena and James Downey Sr. Texas Downey relinquished the land now in question to Christopher Downey (Downey, para 17). Since 2001, Christopher Downey and his wife Christselina lived on the land and built a home that was completed in 2002. No one has challenged Christopher Downey’s claim to this land. In his application, he noted that people in the community also considered the land to be his. Nonetheless, Christopher Downey’s claim was denied by the Senior Land Administration Officer in the Department of Lands and Forestry because he had not met the temporal component of the test as set out by the ministry. Although this family lived on the property for over 100 years, he himself only lived at 39 Beals Crescent for 16 years at the time of his application. Christopher Downey challenged the Minister’s decision and asked the court to consider whether this decision was reasonable (Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65).

Adverse Possession is Antithetical to Righting this Historical Wrong

On judicial review, the NSSC found that the decision to deny Mr. Downey’s claim was unreasonable. Writing the decision, Justice Campbell stated that the ministry was asking for Christopher Downey, and all other claimants through the LTCA, to demonstrate adverse possession. He found that this was a completely inappropriate means by which to assess title claims, particularly given the ameliorative purposes of the LTCA. Though Justice Campbell acknowledged that the Minster had the discretion to establish objective criteria, he found that basing the denial in adverse possession was not reasonable.

First, the language of the LTCA does not require adverse possession nor anything similar to it. Adverse possession comes from Nova Scotia’s Real Property Limitations Act (“RPLA”) and has no bearing nor relation to the LTCA. What the LTCA is looking to establish is a historical connection to the property in question. Though the Minister has the discretion to establish objective criteria, it should only be to help further the goals of the legislation. Adverse possession does not do this and is therefore outside of the bounds of what is reasonable. One major issue in invoking adverse possession is that it requires a trespasser to dispossess the legal title holder. To suggest that Christopher Downey, or any other Black Nova Scotian attempting to receive claim through this scheme, is a trespasser is, quite frankly, offensive. Moreover, adverse possession is intended to help a person who is at risk of being displaced. As it relates to this case, rather than assist the claimant in their quest for entitlement, it acts as a barrier.

This leads to the second major point. Requiring claimants meet the adverse possession definition from the RPLA is entirely at odds with the ameliorative purposes of the LTCA. In his decision, Justice Campbell briefly discussed how the lack of title discriminatorily and systemically impoverished Black communities in Nova Scotia. The LTCA was enacted to begin to remedy this by more easily conferring title to the Black Nova Scotians to whom it applies. The ameliorative purposes of the LTCA were negated by the government’s incorrect application of the law and erroneous requirement for adverse possession. The court therefore rejected entirely the idea of using adverse possession as a means of examining Christopher Downey’s claim for possession and found that the decision by the Minister’s office was unreasonable. The court ordered a redetermination of his application without any reference to adverse possession.

Conclusion

Christopher Downey’s story reminds us that Canada was not always a “safe haven” for Black freedom seekers whom the law protected equally. For Black Nova Scotians, the government’s refusal to confer land title has had devastating, multi-generational consequences. This only continued with the skirting of the LTCA’s ameliorative purpose. This case, and specifically the misapplication of adverse possession, are symptoms of the larger issue of anti-Black racism in Canadian law and history. Property law being wielded against Black settlers was not just an issue in Nova Scotia; it was a tool that was used throughout Canada. For instance, I am from Guelph, Ontario, and about an hour northwest of the city is an area formerly known as the Queen’s Bush. Many Black people who escaped slavery in the United States called this vast area home until the British Crown surveyed the land and demanded exuberant fees to retain title that they knew the Black settlers would be unable to pay. They built their lives in the harsh Queen’s Bush – remnants of churches, schools, and graves remain there to this day. Notwithstanding this, they were forced to leave because they could not afford to stay. I am sure theirs is not the only such story in Ontario. Restricting Black land ownership is a part of Canadian history and it must be reckoned with.

Christopher Downey’s case sheds light on anti-Black racism in property law. It also reminds us that issues such as this betray the very concepts of human rights and dignity. Wherever this occurs, it must be changed. As for himself, Christopher Downey’s advocacy and persistence may finally allow him to receive land title to his property. Moreover, this decision is bound to help countless Black Nova Scotians who were likewise denied by the government’s unacceptable requirement for adverse possession. 

Kerry-Ann Cornwall

Kerry-Ann Cornwall

Kerry-Ann Cornwall is a second year JD/MBA student at Osgoode Hall Law School and Schulich School of Business. Kerry-Ann completed her Bachelor of Arts and Master of Arts, both in Political Science, at the University of Guelph. Her MA research project was about the role that international NGOs played in the development of Tunisia’s constitution following the Arab Spring revolution. At Osgoode Hall, Kerry is a Senior Editor for the Osgoode Hall Law Journal and works with the Privacy Law Society. Moreover, Kerry is the current National Chair of the Black Law Students’ Association of Canada. Kerry is interested in issues of privacy and data protection and management, as well as trusts, corporate, and constitutional law more broadly.

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