Property Lawfinal 12 James Wegener

Property LawFinal – 12’James Wegener

Table of Contents

DOCTRINE OF ABORIGINAL TITLE

Calder v. British Columbia (Attorney-General), [1973] SCR 313

Constitution Act, 1982, ss. 25, 35

Delgamuukw v. The Queen, [1997] 3 SCR 1010

R. v. Marshall, [2005] SCJ No 44

Nisga’a Treaty

The Tsilhqot'in Case 2007 BC

The Tsilhqot'in Case 2012 BCCA

DOCTRINE OF TENURE AND ESTATES

A. Freehold Estates - Owning

(a)Fee Simple

Creation of Fee Simple at Common Law

Creation of Fee Simple Today - Legislation

Interpretation Act, R.S.B.C. 1996, c. 238, s.29 "land"

Property Law Act. [RSBC 1996] c. 377, s. 19

Land Title Act, RSBC 1996, c 250 s. 186(5) & (6)

Wills Act. [RSBC 1996] c. 489 s. 24

Intestate Succession at Common Law

Estate Administration Act [RSBC 1996] c.122, s. 1; ss. 77-79; ss81-99

Survivorship and Presumption of Death Act. [RSBC 1996] c. 444

Wills Variation Act. [RSBC 1996] c.490, s. 2

Law and Equity Act,R.S.B.C. 1996,c. 253

Tataryn v. Tataryn Estate, [1994] 2 SCR 807

(b)Life Estate

Creation of Life Estates

Wills Act, ss. 2 & 24

Property Law Act, s. 19(2)

Re Walker (1924-1925), 56 OLR 517 (AD)

Re Waters (1978), 21 O.R. 124 (H.C.)

Law and Equity Act, R.S.B.C. 1996, c. 253, s. 11

(c)Fee Tail

Property Law Act,s.10 (1) & (2)

B. Leasehold Estates - Renting

Doctrine of Waste

C. Conditional Estates

Vested vs. Contingent Property Interests

1.Uncertainty about keeping (subject to divestment)

2.Uncertainty about getting: (subject to a condition precedent)

(1)Validity of Conditions

(a)Repugnant to Interest Granted – Restraint on Alienation

Blackburn & Cox v. McCallum (1903), 33 SCR 65

Re Brown, [1953] 2 ALL E.R. 1342

(b)Uncertain Conditions

Sifton v. Sifton, [1938] A.C. 656 (J.C.P.C.)

(c)Conditions Contrary to Public Policy

Kent v. McKay, [1982] 6 W.W.R. 165

Re Canada Trust Co. and O.H.R.C. (1990), 69 D.L.R. (4th) 321 (Ont. C.A.)

Re Ramsden Estate (1996)139 D.L.R. (4th) 746

(2)Transmissibility of Interests

Property Law Act, s. 8

D. Future Interests - Trusts

Statute of Uses, s. 2.

Why would someone decide to create trust (equitable interest)?

Gaps in Seisen Today

Resulting and Constructive Trusts

The Rule Against Perpetuities

Perpetuities Act Summary

Caroline (Village) v. Roper Alberta Court of Queen’s Bench

E. Concurrent Interests

Joint Tenancy vs. Tenancy in Common

Creation of concurrent ownership: Four unities

Joint Tenancy or Tenancy in Common?

Creating a joint tenancy

Creating a tenancy in common

McEwan v. Ewers and Ferguson, [1946] 3 D.L.R. 494 (Ont.H.C.)

Property Law Act, ss. 11 (2), 18 (3)

Land Title Act s.173; s. 177

Feinstein v. Ashford, 2005 BCSC 1379

Severance of Joint Tenancies

Termination of concurrent ownership

PART III: MATRIMONIAL AND FAMILY PROPERTY

A. From Separate Property to Equal Sharing: the Emergence of the Matrimonial Property Acts, 1970’s – 80’s

Murdoch v. Murdoch (1973), 41 D.L.R. (3d) 367 (S.C.C.)

B. Matrimonial Property Law and its Interpretation

McIntire v. McIntire, 2012 BCCA 214

Land (Spouse Protection) Act, s.4

Royal Bank of Canada v. Fraser (1994), 139 N.S.R. (2d) 27 (N.S.S.C.)

Horne v. Horne, 2011 ABCA 116

Kerr v Baranow, 2011 SCC 10

PART IV: LAND REGISTRATION

A. Title Registration

Doug Harris, …The Advent of the Torrens System in Canada

Common Law Priorities

Title Registration – Principles

B. Indefeasiblity of Titles/Adverse Possession

Land Title Act, s.23(3); s.23(4)

Limitation Act, RSBC 1996, c 266 , s. 12

Land Title Inquiry Act, s.16.

Gill v. Bucholtz, 2009 BCCA 137

Canadian Pacific Railway (2002) BCSC

C. Security Interests: Mortgages

Mortgage in C/L

Land Title Act, ss. 1, 26-8, 197, 180, 297

Effect of Registration

Remedies for Non-Payment

Credit Foncier v. Bennett

D. Registering non-Proprietary Interests and Aboriginal Title

Registerable Interests

Skeetchestn Indian Band v. British Columbia

PART V: INCORPOREAL HEREDITAMENTS

A. Easements

Land Act, s.40

(a)Characteristics of an Easement

Re Ellenborough Park, [1956] 1 Ch. 131 (C.A.)

Phipps v. Pears, [1965] 1 Q.B. 76, [1964] 2 All E.R. 35 (C.A.)

(b)Creation of Easements

Land Transfer Form Act [RSBC 1996] c. 252 s. 3

Israel v. Leith (1890), 20 OR 361 (CA)

Land Title Act, s.24

(c)Scope and Extent

Malden Farms Ltd. v. Nicholson, [1956] OR 415 (CA).

(d)Termination

B.Covenants

Dominant lands sold:

Servient lands sold:

Both lands sold:

Durham Condominium Corporation No. 123 v. Amberwood Investments Limited et al.

Aquadel Golf Course Limited v. Lindell Beach Holiday Resort Ltd., 2008 BCSC 284

DOCTRINE OF ABORIGINAL TITLE

Aboriginal Title

•Historical occupation (inherent right) (Calder)

•The Indians were occupying the land before any European settlers came

•Distinct category of Aboriginal right

•Confers right to exclusive use and occupation of land for a variety of purposes beyond traditional practices and customs of a band

Extinguishment of AT

Level of gov’t with power to extinguish aboriginal rights

Feds: 91(24) – “Indians and lands reserved for the Indians”

How is extinguishment to be accomplished?

•Pre-1982

Feds could extinguish bilaterally (treaty and land claims – surrender land)
Feds could extinguish unilaterally, if intention is clear and plain

•Post-1982

No unilateral extinguishment, only bilaterally
This is the only kind of property right that has constitutional protection from gov’t

Calder v. British Columbia (Attorney-General), [1973] SCR 313

The Nisga’a were asking for recognition of their pre-existing title as a legal right arising out of their prior occupation or the Royal Proclamation, and for a declaration that extinguishment required explicit government action that had never taken place in B.C.
Decided against the Nisga’a on a procedural ground: they had not obtained permission to sue the provincial crown which you had to do at the time.

Reiterated:

Aboriginal title exists in conjunction with Crown title
Can only be alienated to the Crown
Can be extinguished unilaterally by the Crown, although disagreement as to what would be sufficient for extinguishment - test comes later in Sparrow

New:

Aboriginal title is an inherentright, not dependent on any Crown grant, proclamation or legislation
Instead, based on historic occupation and use of land.

Constitution Act, 1982, ss. 25, 35

Aboriginal rights and freedoms not affected by Charter

25.The guarantee in this Charter of certain rights and freedoms shall not be construed so as to abrogate or derogate from any aboriginal, treaty or other rights or freedoms that pertain to the aboriginal peoples of Canada including

(a)any rights or freedoms that have been recognized by the Royal Proclamation of October7, 1763;

(b)any rights or freedoms that now exist by way of land claims agreements or may be so acquired.

Recognition of existing aboriginal and treaty rights

35.(1)The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed.

Question: Explain, with reference to cases studied this year in Property Law, hows. 35 of theConstitutionAct, 1982has affected the development of the doctrine of aboriginal title.

Sparrow1990 SCC:First time SCC had to interpret s. 35(1):
Constitutional protection–AT is the only title w/in Canada with that protection;
But note only re existing title, not title extinguished pre 1982 (Delgamuukw)

Extinguishment: Since 1982, cannot have unilateral extinguishment of AT; First Nation must consent.
However, AT is not absolute–though cannot be unilaterally extinguished, can be regulated bygovt, if 2 part test met:Sparrow1990 SCC:
Regulation is in furtherance of valid legislative objective
It is in keeping with the honor of the Crown/special fiduciaryrelationshipbetween Crown and aboriginal peoples
Proof of Aboriginal titleis through test for AT based on occupation at time sovereignty claimed over area in question
Nature of AT: Land held by AT can be used in non-traditional ways, but not in ways that are irreconcilable with the special linkbtnthat first nation and that land:

Some remains the same (i.e. from pre 1982 cases)

Inherent title, based on occupation–Calder-1973“Aninherentright, not dependent on any Crown grant,proclamation or legislation”
Since confederation, can only surrender to the fed crown—Calder--1973

Delgamuukw v. The Queen, [1997] 3 SCR 1010

Nature of aboriginal title

Sui generis

Unique - Not personal, a right to the land itself

Inalienable:-

Can only be surrendered to the Crown
Ultimate sovereignty and underlying fee simple lie with the Crown

Source

Doesn’t flow from a Crown grant: arises out of

fact of prior occupation and use
relationship btnc/l and pre-existing systems of aboriginal law

Held communally

Can be enjoyed by many

Content of Aboriginal Title

Aboriginal title encompasses right to use the land for quite a broad range of purposes  doesn’t have to do with just aboriginal rights
But contains one inherent limit - lands held pursuant to Aboriginal title cannot be used in a manner irreconcilable with the community’s continued relationship with the land
Ex. Using it to extract minerals from an area that was used for hunting or religious ceremonies then that is irreconcilable with the relationship with the land

Test for Aboriginal title – Delgamuukw

Must show that the land was occupied prior to the Crown’s declaration of sovereignty;
Occupation must have been exclusive
If relying on present occupation as proof of occupation at time of declaration of sovereignty, must be some continuity between pre-sovereignty occupation and present occupation

Analysis regarding infringement/ regulation – Sparrow

Did the right/ title exist, historically?
Does it still exist today or was it extinguished at some point?
If the right/ title is still in existence, does the government action, prima facie, infringe it?
If yes, can that infringement be justified:
in furtherance of a legislative objective that is compelling and substantial?
In keeping with the Crown’s fiduciary obligations?

R. v. Marshall, [2005] SCJ No 44

2005 decision: SCC held that Mi’kmaq people did not have a treaty right to harvest timber for commercial purposes, and that aboriginal title had not been established at the locations asserted. Significant for how it discussed proof of aboriginal title.

Exclusivity:

Need not require proof that the aboriginal group physically excluded others from the lands in question – test: did they have the ability to exclude others if they chose to do so?
Question is whether a nomadic people enjoyed sufficient physical possession to give them title to land.

Continuity:

Need to establish a connection with the pre-British sovereignty group upon whose use and occupation of the land the aboriginal title claim is based.
Can be done by showing that the group has maintained a substantial connection with the land since the assertion of sovereignty.

Applied Tests in Delgamuukw.

For Aboriginal title:

Occupation:“Physical occupation“: How can you establish physical occupation?
“Exclusive” occupation: What does this mean, and when is this achieved?
Intention
Capacity to control
Preferred approach: trial judges
Requiring proof of sufficiently regular and exclusive use of the cutting sites by the Mi’kmaq people at the time of assertion of sovereignty
Courts of Appeal
Taking a territorial approach – arguing that specific proof of physical occupation at the specific sites, rather than exclusive possession of a reasonably define territory was not consistent with either the common law or the aboriginal perspective of occupation.
SCS preferred trial judge approach – proof of sufficiently regular and exclusive use

Application to the Facts

Sovereignty– mainland NS – 1713
NS (Marshal):
The Mi’kmaq were moderately nomadic,
Coastal areas and nearby hunting grounds used extensively, but unlikely that lands so used covered most of the mainland
No clear evidence that Mi’kmaq made any use, let alone regular use, of areas where logging occurred

Nisga’a Treaty

Intended to

“result in... reconciliation and establish a new relationship” among the parties ; a relationship based on recognition rather than extinguishment of rights”.
“provide certainty with respect to Nisga'a ownership and use of lands and resources, and the relationship of federal, provincial and Nisga'a laws”.
Recognizes that the Nisga’a hold Nisga’a Lands – almost 2000 square kilometers in the lower Nass Valley of British Columbia – in fee simple
Provides for Nisga’a hunting and fishing rights and participation in management of wildlife resources in a much larger area within the Nass Valley
Provides for the payment of money to the Nisga’a Nation over a period of several years.
Recognizes the Nisga’a Nation’s right to self-government and its right to make laws in accordance with the agreement;
Recognizes two levels of Nisga’a government:

the Nisga'a Lisims Government (government of the Nisga'a Nation,)and
Nisga'a Village Governments (local level gov’ts)

Provides for a Nisga’a Constitution which must be consistent with the Treaty
States that the Charter of Rights and Freedoms applies the Nisga’a government
Sets out the legislative powers of Nisga’a government
Provides paramountcy rules for the resolution of potential conflicts between Nisga’a law and federal or provincial laws.

Nisga’a Final Agreement, Chapter 3, s. 3

Ownership of Nisga’a Lands

3. On the effective date, the Nsiga'a Nation owns Nisga'a Lands in fee simple, being the largest estate known in law. This estate is not subject to any condition, proviso, restriction, exception, or reservation set out in the Land Act, or any comparable limitation under any federal or provincial law. No estate or interest in Nisga’a Lands can be expropriated except as permitted by, and in accordance with, this Agreement

Nisga’a Landholding Transition Act, ss. 2, 4

(page 2 in legislation supplement)

The Tsilhqot'in Case 2007 BC

Used tests and approach in Delgamuukw.

Standard of proof of “Occupation”:

Question was about the standard of occupation, did it meet the threshold to prove there was pre-sovereignty occupation at a certain time
What was the test of “occupation” adopted by the SCC in previous cases?
Delgamuukw: physical occupation can be made through a number of ways
Marshall: a high standard of occupation is required
What was the MAJOR area of disagreement between Crowns and Plaintiff in relation to the scope of definition of ‘definite tracts of land”?
The date that the Chicotlin had exclusive occupation of an area, if any
Explain the post stamp approach versus security and continuity approach
Crown: there can only be exclusive occupation of an area if it is a specific area that has intensive occupation – fishing and hunting is not enough to establish aboriginal title
Plaintiff: the Chicotlin people were nomadic people who travelled over their vast territory, and this aboriginal perspective must be recognized (post stamp)
Court: Rejected the post stamp approach for occupation, adopted cultural security and continuity approach for occupation

What does Vickers J do with the tests of Marshall/Bernard decision?
Unlike Marshall, this is a claim for a whole tract of land, not just specific sites
This case is different from quantity and quality of Marshall case

BUT said:

“It appears to me that the Supreme Court of Canada has set a high standard requiring ‘regular use or occupancy of definite tracts of land’. The Supreme Court has now clearly stated that “[t]o say that title flows from occasional entry and use is inconsistent with […] the approach to aboriginal title which this Court has consistently maintained” (Marshall; Bernard at para 59)

Conclusion? There was aboriginal title for 40% of the land where there was strong evidence of fishing and hunting. Also found aboriginal rights in some parts of the land.
Declaration of title? No, due to the phrase of the pleading, the court could rule aboriginal title over all of the land or none of the land. And they found there was not title to all of the land.
Rejected Crown’s postage stamp approach
Both parties appealed this decision (see below)

The Tsilhqot'in Case 2012 BCCA

Set aside Trial level decision
What issue did the BCCA frame to decide on AT?
What more was needed for sufficient degree of occupation?

 Regular presence or intensive occupation of particular parts of land (para. 215)

 Regular use of the land through, for example, encampments, hunting, fishing, etc…

 This is how the court interpreted occupation from Delgamuukw

Was the plaintiffs’ claim a “territorial” claim?
Yes – according to BCCA
Was J. Vicker correct to distinguish this case from Marshall?
The standard in Marshall was regular and exclusive use, sufficient to amount to title
In Marshall, it was for specific sites
It cannot be applied to a territorial claim, such is being made here
Aboriginal title can only be proven over specific sites
According to the court, these were not specific sites, it was not a definite tract of land
What do you think about Lambert’s claim that “the concept of site – specificity is about aboriginal rights and not about aboriginal title”? (dissent)
Tracts of land must be definite, but it is not a requirement that it be tiny
What is “definite tract of land” according to plaintiffs and the BCCA?
Specific spots where there was intensive use
Issues to recognize from this case:
Aboriginal titles cannot be found over territorial sites, only specific sites
Over the specific sites, there needs to be regular presence and intensive occupation
Aboriginal titles cannot be found for tribes that are nomadic or semi-nomadic
This approach does not seem to use “aboriginal perspective” as defining use, as we saw in Delgamuukw

This Decision was appealed to SCC, but it has yet to begin

DOCTRINE OF TENURE AND ESTATES

A. Freehold Estates - Owning

3 Kinds of Freehold estates recognized at common law:

Fee simple
Most important
Why? Closest approximation to absolute ownership
Fee tail
Effectively extinct, abolished in BC
Life Estate
Some continuing utility

(a)Fee Simple

Freehold estate granted without restriction and without preference to heirs. It is the most complete interest in land capable of being granted.

Duration

Fee: interest is of inheritance, by will or intestate; potentially infinite duration
i.e. unlike a life estate which lasts only for a lifetime, this could in theory last forever
Simple: In case of intestacy, no limits to heirs it could pass to
eldest son
if no son, share among daughters
if no sons or daughters, share among dead person’s parents/ brother/ sisters/ etc..
Contrast to fee tail (Property could only descend to direct lateral descendants of holder)

Is largest estate; closest to complete full circle of ownership
Biggest bundle of proprietary rights re land; includes rights to use / rent/ sell/ leave by will
Owner can transfer either by sale/gift inter vivo or by will (Despite “fee”)

Language of creation

Common formula: two kinds of words are necessary
Words of purchase (specify who is getting the property interest)
Words of limitation (what interest do they take)
To A & his heirs
and his heirs: words of limitation

Creation of Fee Simple at Common Law

Gift inter vivo : In common law, magic words strictly required in case of gift, as opposed to in case of will
To A and his (her) heirs – any other expression would not result in fee simple
Or - Exceptional Rule in Shelley’s Rule case: To A for life, remainder to A’s heirs;
Looks like a life estate to A, direct gift to A’s heirs…
If overall intent is to create fee simple, creates fee simple (today)
If the wording is either of the following, it creates a fee simple
To A forever
To A in fee simple

Created only a life estate in the past

Will: In a will, the c/l would look for intent: recognize any of the following as creating a f/s in A
Just show, in some convincing way, that there was a clear intention to create a fee simple:
To A and his (her) heirs
To A for life, remainder to A’s heirs (Shelley’s rule).
To A forever
To A in fee simple
If no clear intention, still presumption in favour of life estate.

Creation of Fee Simple Today - Legislation

Property Law Act s. 19; Land Title Act, s. 186(5) & (6); Wills Act, s. 24
Presumption in favour of fee simple
Other provinces have fairly similar language
Presumption that Fee Simple passes (by will or grant) unless contrary intent is proved

Interpretation Act, R.S.B.C. 1996, c. 238, s.29 "land"

Expressions defined