Contents
Aboriginal Title
Aboriginal Property Rights come in THREE TYPES:
DOUGLAS TREATIES 1850-1854
TERMS:
Are the Douglas Treaties a treaty or a transfer deed (signature of transferor only)?
Regina v. White & Bob (1965) – Supreme Court Decision - Douglas Treaties are TREATIES – exempt from Provincial Hunting Laws
ROYAL PROCLAMATION 1763
British North America Act 1867 s. 91 (24) Indians, and Lands reserved for the Indians
Grants legislative power to the Federal Government.
But…
British Columbia Terms of Union 1871
St. Catherine’s Milling Lumber v. Queen [1888] PC - Aboriginal Title is a “personal and usuafructory right” over the land – NOT a property interest – Aboriginals did not have a right to give property rights to anyone, since they did not have them to begin with.
BC Gov’t position until the 1970’s
Calder v. Attorney General of British Columbia, [1973] S.C.R. 313 – Canadian law acknowledges that Aboriginal Title to land exists prior to the Colonization of the Continent. – NOT JUST USUFRUCTUARY
Section thirty-five of the Constitution Act, 1982
R. v. Sparrow, [1990] 1 S.C.R. 1075 – fishing with a drift net 20 fathoms longer than allowed - The governments of Canada have a fiduciary relationship with Aboriginals under section 35 of the Constitution Act, 1982; any denial of Aboriginal rights under section 35 must be justified, and Aboriginal rights must be given priority.
3 PART TEST:
Priority Scheme…
R. v. Van der Peet, [1996] 2 S.C.R. 507 - aboriginal fishing rights did not extend to commercial selling of fish - a practice must have been integral to the distinctive nature of the culture prior to contact by Europeans
"Integral to a Distinctive Culture Test"
R. v. Gladstone, [1996] 2 S.C.R. 723 – herring eggs from kelp – commercial trade – valid by Van der Peet test because it was the traditional practice of the Heiltsuk to trade in herring roe.
Background
Opinion of the Court
Delgamuukw v. British Columbia [1997] 3 S.C.R. 1010, 1997 CarswellBC 2385 – oral histories
Provincial government position
Supreme Court ruling
What is aboriginal title?
Where does aboriginal title exist in BC?
Will the decision affect private property?
How will aboriginal title affect the Province’s title to Crown lands?
R. v. Bernard; R. v. Marshall – [2005] 2 S.C.R. 220, 2005 – Aboriginal logging claims - CarswellNS 317
Background
Opinion of the court
Tsilhqot’in Nation v. British Columbia (2007) (B.C.S.C.) – Difference between aboriginal title and hunting and fishing rights – first time Aboriginal Title is found to exist, but sent back to trial on a technicality.
Haida Nation v. British Columbia[2004] 3 S.C.R. 511 – Weyerhauser logging in Haida Gwai’i - The Crown has a duty to consult and accommodate Aboriginal groups prior to exploiting lands to which they may have claims
Background
Judgment of the Court
Equitable Interests
Land tenure in England
Decline of land tenure
LIFE ESTATE & FEE SIMPLE
If rules of equity and law conflict, equity prevails
Section 44 of Law and Equity Act [RSBC1996] CHAPTER 253
Trusts
EXPRESS TRUST
Resulting Trusts – arise in 2 ways:
Equity prefers bargains over gifts.
Presumption of Advancement definition:
Pecore v Pecore [2007] 1 S.C.R. 795, 2007 CarswellOnt 2752 – Resulting Trust or Outright Gift in father/daughter joint back account/transfer = JOINT TENANCY vs. RESULTING TRUST (Remaining Equitable Interest)
Ruling: the daughter holds both equitable and legal interest.
Property Law Act [RSBC1996] CHAPTER 377
Words of transfer
Constructive Trusts
Murdoch v. Murdoch [1975] SCC, - spouse claims trust – SCC rejects claim and says was mere loan – PUBLIC PRESSURE AND STRONG DISSENT LEAD TO CHANGE IN LAW (this case is no longer valid)
Rathwell v. Rathwell [1978], which had similar fact to Murdoch, SCC found a resulting trust based on common interest, but has accepted that one of the ways to remedy unjust enrichment is by creating a constructive trust in favour of the one who suffered from the unjust enrichment.
Unjust Enrichment Test:
Remedial Trust Test:
Peter v. Beblow [1993] SCC Remedial constructive trust for housekeeping (common law spouses)
Soulos v. Korkontzilas - [1997] 2 S.C.R. 217 - Constructive trust Agency Fiduciary duties Real estate agent making offer to purchase property on behalf of client – but then buys property himself.
CONDITIONAL GIFTS AND FUTURE INTERESTS
REVERSIONS v. REMAINDERS
Reversion
Remainder
DEFEASIBLE v. DETERMINABLE INTERESTS
Defeasible Interest/(Condition Subsequent) – fails = absolute gift
Determinable Interest – condition fails = gift fails
VESTED v. CONTINGENT REMAINDERS
Vested Interest:
Contingent Interest:
Vested Interest
Contingent Interest (or Condition Precedent)
Where a will is ambiguous
PUBLIC POLICY & UNCERTAINTY
Freehold Estates – by G to “A for life and then to B in fee tail”
Stuartburn (Municipality) v. Kiansky [2001] QB - A remainder interest is vested, and thus a valid freehold estate
Freehold interest:
Life estate
Seisin
McKeen Estate v. McKeen Estate 1993 - Presumption against intestacy and inclination to vesting.
Personal = Contingent
(RULE IN) Browne v. Moody [1936] O.R. 422 (P.C.) - Rule: A gift is prima facie vested if the postponement is to allow for a prior life estate.
Rules of Construction
Caroline (Village) v. Roper (1987)
St. Mary’s Indian Band v. Cranbrook (City) [1997] 2 S.C.R. 657, 1997
Covenants
Discriminating Covenants
Conservation Covenants
Restrictive Covenants
State Limitations on Private Power (pgs 502-534)
Unger v. Gossen 1996 CarswellBC 1248 (S.C.) – Unless it can be shown that the dominant intent was the condition, and not a gift, then the condition alone must fail.
H.J. Hayes Co. v. Meade 208 A.P.R. 419, 1987 CarswellNB 66 (Q.B.) – In the case of ambiguity, courts read condition as subsequent to allow for immediate vesting.
Re: Leonard Foundation Trust (1990 ON CA) – State policy applies to any trust with significant public element.
Leases & Licences
4 (possibly 5) types of leases…
Essential Elements of a Lease…
License…
Fatac Ltd. (in liquidation) v. Commissioner of Inland Revenue [2002] NZCA 269- Substance not wording defines lease
Metro-Matic Services Ltd. v. Hulmann 1973, 4 O.R. (2d) 462 (C.A.) – “Quiet Enjoyment” implies exclusive possession, and restrictions allowed so long as confirm right to do business
Southwark LBC v. Tanner [2001] 1 A.C. 1 (H.L.) – Quiet Enjoyment only applicable to Landlord – not other tenants (PRIVITY)
Petra Investments Ltd v. Jeffrey Rogers plc [2000] L. & T.R. 451 (Ch. D.) – Using the land in a way that undermines profitability of a tenant’s business is not derogation.
SHARED OWNERSHIP
Tenancy in common
Joint tenancy
To be a Joint Tenancy… FOUR UNITIES…
Re Bancroft, Eastern Trust Co. v. Calder [1936] 4 D.L.R. 571 (N.S.S.C.) – if no express intention – common law assumes JOINT TENANCY
EQUITY DIFFERENCES against presumption of Joint Tenancy
Property Law Act (changes everything – but only for land – not shares in a corporation, chattels, leases, etc!!)
SEVERENCE OF JOINT TENANCY
Williams v. Hensman (1861) - act of one joint tenant “operating on his own share”
Sorenson Estate v. Sorenson (1977) – Severance of joint tenancy
Three ways in which joint tenancies can be severed:
Feinstein v. Ashford, 2005 BCSC 1379, - severed the joint tenancy when he signed a transfer of his interest in the land to himself, even though the transfer was not registered
SERVITUDES OVER PROPERTY (Easements – RUN WITH THE LAND; Non Easements – DO NOT RUN WITH THE LAND)
Re Ellenborough Park ([1956] Ch. 131) - defining an easement
Shelf Holdings V. Husky Oil (1989-Alta.CA) [is building a pipeline too close to possessory interest and is therefore not an easement?] NO – it is an easement
Profit a Prendre - A servitude which resembles an easement and which allows the holder to enter the land of another and to take some natural produce such as mineral deposits, fish or game, timber, crops or pasture.
British Columbia v. Tener (1985), 32 L.C.R. 340 (S.C.C.) - Profit a prendre may be held independently of the ownership of any land, i.e., they may be held in gross. In this they differ from easements
National Trust Co. v. Bouckhuyt 1987 39 DLR 4th 60 (1987, Ontario):
ACCESS TO PUBLIC AND PRIVATE PROPERTY (USUALLY HAS TO DO WITH FREEDOM OF EXPRESSION WITH REGARD TO PUBLIC PROPERTY USES)
Director of Public Prosecutions v. Jones (1999) (HL) - Protest at Stonehenge
Michelin & CIE v. C.A.W.-Canada (1997) 2 F.C. 306 (Michelin Man cartoon stomping on workers)
Re Drummond Wren [1945] - Land not to be sold to Jews or persons of objectionable nationality - Wren asked that the covenant be declared invalid.
Quotable quote
Noble v. Alley [1951] S.C.R. 64 - Court struck down a restrictive covenant that restricted ownership of a section of land to "persons of the white or Caucasian race” - covenant did not touch and concern the land – but rather was attached to the owner – therefore invalid restrictive covenant – no word on public policy
Land Title Act [RSBC1996] CHAPTER 250
Registration of covenant as to use and alienation
Discriminating covenants are void
PRIORITIES
Legal and Equitable Interests
Chippewas of Sarnia Band v. Canada (A.G.) (2000) 41 R.P.R. (3d) 1 – Aboriginal Title is Sui Generis – therefore subsequent legal title takes priority.
TITLE REGISTRATION (as opposed to “Deeds”)
1.Registration Principle…
2.Indefeasibility Principle… {KILLS THE NEMO DAT PRINCIPLE}
3.Abolition of Notice Principle {KILLS THE requirement for NOTICE}
4.Assurance Principle {Compensation only to earlier titles – no absolute ownership – registration trumps but there can be compensation.}
FRAUD
Assurance Fund?
Validity of documents
Credit-Foncier Franco v. Bennett (1963) BCCA - if you are dealing with the registered FS owner, you are protected – if not then not
Canadian Commercial Bank v. Island Realty Investments Ltd. (1988) CA) - you can assume validity of documents and can rely on protection afforded by indefeasibility if you trace them back to the fee simple owner (this was NOT the case in CF). At CL, Almont would not have taken priority but this does not determine the outcome here
Priority as between charges
Aboriginal Title
Aboriginal Property Rights come in THREE TYPES:
- Reserve Land (Federal Gov’t holds in trust for Indian People)
- Treaty Land (Indian people own in fee simple.)
- Aboriginal Title Lands (to date we have a TEST but no actual defined lands.)
Background to Aboriginal societies of British Columbia
- Columbia river becomes the main transportation route through the “Oregon Territory” – which includes most of what is currently Oregon, Washington, and British Columbia.
- 1846 – establishes the boundary of the 49th parallel – the “Oregon/Washington Treaty”.
- The Hudson Bay Co. can no longer operate via the Columbia River.
- 1849Hudson Bay Co. moves its operations (from what is now Vancouver, Washington) to and establishes colony of Vancouver Island.
- The British gov’t and the Hudson Bay Co. begin to form treaties with the Aboriginal people on Vancouver Island.
- The DOUGLAS TREATIES (14 of them) were signed from 1850-54. But that’s it. No more treaties.
DOUGLAS TREATIES 1850-1854
Between 1850 and 1854, James Douglas, made a series of fourteen land purchases from aboriginal peoples.
The Douglas Treaties cover approximately 358 square miles [tiny chunk of land – unlike rest of Canada – treaty negotiation began and ended here – this is why there is still much dispute with current Aboriginal Land Claims, because it wasn’t dealt with again until the 1990’s.] of land around Victoria, Saanich, Sooke, Nanaimo and Port Hardy, all on Vancouver Island.
Treaty negotiations by Douglas did not continue beyond 1854 due, in part, to a lack of funds and the slow progress of settlement and industry in the 1850s.
Douglas' policies were generally consistent with British principles. Those of his political successors, however, proved to be not as consistent.
Land was surrendered "entirely and forever" in exchange for cash, clothing, or blankets. The signatories and their descendants retained existing village sitesand fields for their continued use, the "liberty to hunt over unoccupied lands" and the right to "carry on their fisheries as formerly."
Douglas' land purchases have consistently been upheld as treaties by the courts (R. v. Whiteand Bob, 1964; R. v. Bartleman, 1984; Claxton v. Saanichton Marina Ltd., 1989). In 1987 the Tsawout Band successfully obtained a permanent injunction restraining the construction of a marina in Saanichton Bay on the grounds that the proposed facility would interfere with fishing rights promised to them by their 1852 treaty.
TERMS:
“The condition of our understanding of this sale is this, that our village sites and enclosed fields are to be kept for our own use, for the use of our children, and for those who may follow after us; and the land shall be properly surveyed, hereafter. It is understood, however, that the land itself, with these small exceptions, becomes the entire property of the white people for ever; it is also understood that we are at liberty to hunt over the unoccupied lands, and to carry on our fisheries as formerly.”
Are the Douglas Treaties a treaty or a transfer deed (signature of transferor only)?
Implications – if it is treaty then it has Constitutional protection and supremacy. If it is not a treaty, then things like provincial hunting laws apply and are enforceable.
If it is a TREATY three possible interpretations:
- Take the TEXT as the whole treaty.
- Take the TEXT PLUS surrounding circumstances and documents.
- The ORAL agreement is the treaty – and the TEXT is ONLY evidence of the ORAL agreement, which may or may not be complete.
Regina v. White & Bob (1965) – Supreme Court Decision - Douglas Treaties are TREATIES – exempt from Provincial Hunting Laws
The decision found that early agreements inked by B.C.’s first governor and Hudson Bay chief factor James Douglas were treaties within the meaning of the Indian Act and recognized First Nations peoples’ rights to hunt in exclusion of the B.C. Game Act.
ROYAL PROCLAMATION 1763
“And whereas it is just and reasonable, and essential to our Interest, and the Security of our Colonies, that the several Nations or Tribes of Indians with whom We are connected, and who live under our Protection, should not be molested or disturbed in the Possession of such Parts of Our Dominions and Territories{this is an assertion of Sovereignty} as, not having been ceded to or purchased by Us, are reserved to them, or any of them, as their Hunting Grounds.--We do therefore, with the Advice of our Privy Council, declare it to be our Royal Will and Pleasure, that no Governor or Commander in Chief in any of our Colonies of Quebec, East Florida, or West Florida, do presume, upon any Pretence whatever, to grant Warrants of Survey, or pass any Patents for Landsbeyond the Bounds of their respective Governments, as described in their Commissions: as also that no Governor or Commander in Chief in any of our other Colonies or Plantations in America do presume for the present, and until our further Pleasure be known, to grant Warrants of Survey, or pass Patents for any Lands beyond the Heads or Sources of any of the Rivers which fall into the Atlantic Ocean from the West and North West, or upon any Lands whatever, which, not having been ceded to or purchased by Us as aforesaid, are reserved to the said Indians, or any of them.
And We do further declare it to be Our Royal Will and Pleasure, for the present as aforesaid, to reserve under our Sovereignty, Protection, and Dominion, for the use of the said Indians, all the Lands and Territories not included within the Limits of Our said Three new Governments, or within the Limits of the Territory granted to the Hudson's Bay Company, as also all the Lands and Territories lying to the Westward of the Sources of the Rivers which fall into the Sea from the West and North West as aforesaid.
And We do hereby strictly forbid, on Pain of our Displeasure, all our loving Subjects from making any Purchases or Settlements whatever, or taking Possession of any of the Lands above reserved, without our especial leave and Licence for that Purpose first obtained.
And, We do further strictly enjoin and require all Persons whatever who have either wilfully or inadvertently seated themselves upon any Lands within the Countries above described, or upon any other Lands which, not having been ceded to or purchased by Us, are still reserved to the said Indians as aforesaid, forthwith to remove themselves from such Settlements.”
1858 – Gold rush – establishment/creation of the colony of “British Columbia” by Queen Victoria.
1871 – “British Columbia” joins the Canadian Confederation.
British North America Act 1867s. 91 (24) Indians, and Lands reserved for the Indians
Grants legislative power to the Federal Government.
But…
British Columbia Terms of Union 1871
13. The charge of the Indians, and the trusteeship and management of the lands reserved for their use and benefit, shall be assumed by the Dominion Government and a policy as liberal as that hitherto pursued by the British Columbia Government shall be continued by the Dominion Government after the Union.
To carry out such policy, tracts of land of such extent as it has hitherto been the practice of the British Columbia Government{10 acres per family – doesn’t match the national policy of large treaties and large tracts of land} to appropriate for that purpose, shall from time to time be conveyed by the Local Government to the Dominion Government in trust for the use and benefit of the Indians on application of the Dominion Government; and in case of disagreement between the two Governments respecting the quantity of such tracts of land to be so granted, the matter shall be referred for the decision of the Secretary of State for the Colonies.
Numbered Treaties 1871-1921 of the “Northwest Territorties” (which includes what is now most of Manitoba, Sask, Alberta, part of BC (N.E.) and a chunk of the current NWT).
St. Catherine’s Milling Lumber v. Queen [1888] PC - Aboriginal Title is a “personal and usuafructory right” over the land – NOT a property interest – Aboriginals did not have a right to give property rights to anyone, since they did not have them to begin with.
Aboriginal Title is a “personal and usufactory right” over the land
Facts: From 1670-1870 HBC had Crown rights to Rupert’s Land. In 1870 Fed purchased it from HBC and granted a timber lease to PL. Fed claims that it had acquired the land from the Ojibwa Treaty 3, and it was in their power to give timber rights. ON claimed it was Crown land, and it was provincial jurisdiction allocating the timber rights.
Issues: What rights did the Fed acquire from Ojibwa in Treaty 3?
Discussion:
• FED: Ojibwa held the land in a fee simple sort of a thing, and were free to give it to the Fed in the treaty
• ON: Ojibwa did not have fee simple, they merely occupied the land, and they did not have a right to give property rights to anyone, since they did not have them to begin with. Treaty 3 was merely political.
• PC: Crown had an estate interest and the Aboriginal interestwas amere burden. Aboriginal have a “personal and usufactory right” over the land - occupation and use (hunting and fishing) of the land, NOTexclusive possession.