Table of Contents
Issues in Aboriginal Title 5
Delgamuukw v. British Columbia (1997) SCC 5
Aboriginal Title OUTSIDE of the treaty process 5
Key Facts 5
Origin of Aboriginal Title 5
Content of Aboriginal Title 5
Limits of Aboriginal Title 5
How to Establish Aboriginal Title 5
Infringement on Aboriginal Title 6
Other types of s.35 rights 6
R. v. Marshall; R. v. Bernard (2005), 255 D.L.R. (4th) 1 (SCC) 7
Cultural Property or Traditional Knowledge 8
Tangible Chattels: Artifacts 8
Intangible Chattels: Traditional Knowledge 8
Issues of Indefeasibility (Casebook pp. 258-298) 8
Land Title Act, RSBC 1996 c. 250 8
s. 23(2) generally 8
General principle – Creelman v. Hudson Bay Insurance Company, [1920] AC 194 (PC) 9
Exception: Fraud: Land Title Act s.23(2)(i) 9
Gibbs v. Messer [1981] AC 248 (PC) 10
Frazer v. Walker, [1967] 1 AC 569 (PC) 10
NO Exception: Nullity: Land Title Act s.25.1 11
Mortgages and Indefeasibility 11
Pacific Savings and Mortgage Corp v. Can-Corp Developments Ltd. [1982] 4 WWR 239 (BCCA) 11
Notice of Unregistered Interests: Section 29, Land Titles Act, R.S.B.C. 1996, c. 250 12
Central Station Enterprises Ltd. v. Shangri-La Estates Limited (1979), 14 B.C.L.R. 1 (BCSC) 12
Me-N-Ed's Pizza Parlour Ltd. v. Franterra Development Ltd., [1975] 6 W.W.R. 752 (B.C.S.C.) 13
Nicholson v. Riach (1997), 34 B.C.L.R. (3d) 381 (B.C.S.C.) 13
The Fee Simple (Casebook pp. 299-302) 14
"Words of Limitation" and "Words of Purchase" 14
Section 19, Property Law Act, R.S.B.C. 1996, c. 377 14
Section 24, Wills Act, R.S.B.C. 1996, c. 489 14
Re Ottewell (1969), 9 D.L.R. (3d) 314 (S.C.C.) 14
The Life Estate (Casebook pp. 303-353) 15
Repugnancy – A fee simple or a life estate? 15
Re Walker (1925), 56 O.L.R. 517 (Ont. App. Div.) 15
Re Richer (1919), 50 D.L.R. 614 (Ont. App. Div.) 16
Re Shamas (1967), 63 D.L.R. (2d) 300 (Ont. C.A.) 16
Intervivos: Re Tremblay and Township of Tay (1984), 45 O.R. (2d) 521 (On Reserve) 17
Waste 17
A. Legal Waste 17
B. Equitable Waste 18
Liability for Taxes and Remainder Interests: 19
Mayo v. Leitovski, [1928] W.W.R. 700 (Man. K.B.) 19
Morris v. Howe (1982), 31 R.P.R. 51 (Ont. H.C.) (Supp. Casebook, p. 155). 19
Chuckritz—Distinguished from Morris 20
Family/Spousal Issues 20
History: Remember from Term One 20
Modern Statutes and Case Law: Family Relations 21
Land Spouse Protection Act: REQUIRED EVENT = Registration by the non-owning spouse 21
Family Relations/Family Law Act: REQUIRED EVENT = Marriage Breakdown 22
BC Estate Administration Act: REQUIRED EVENT = NO WILL 23
Wills Variation Act: REQUIRED EVENT = A WILL 23
Co-Ownership 26
Creation of Joint Tenancies and Tenancies in Common 28
Re Bancroft Eastern Trust Co. v. Calder, [1936] 4 D.L.R. 571 (N.S.S.C.) 28
Winchester v. McCullough (2000), 30 R.P.R. (3d) 5 (NBQB) 29
Bull v. Bull [1955] 1 QB 234 (CA) 29
Robb v. Robb (1994), B.C.L.R. (2d) 7, at 12-13 (B.C.S.C.) (On Reserve) 30
Relations Between the Co-Owners 30
Share of Profits 30
Share of Expenses 31
Severance of Joint Tenancies 32
1) Destruction of one of the unities 32
2) Agreement between the parties 36
3) Unilateral Intention of a single joint tenant 36
Partition and Sale 37
General/History 37
Who may apply 38
Nature of the jurisdiction 38
Future Interests (Casebook pp. 451-485) 39
Nature of Future Interests 39
"Vested" and "Contingent" Interests 39
Requirements for Vesting 40
"Conditions Precedent" and "Conditions Subsequent" 40
Types of Future Interests 44
Common Law 44
Legal Executory Interests (Casebook, p. 478-484) 47
Equitable Future Interests 47
Types and Validity of Conditions and Qualifications 48
Restraints on alienation 48
Uncertainty: 48
The Rule Against Perpetuities 49
Common-law: 49
The Perpetuities Act 50
Incorporeal Interests (Casebook pp. 491 - 532) 52
Easements (Casebook pp. 491 - 500) 52
Phipps v Pears 52
Legal Requirements for an Easement 53
Statutory Easements (Casebook pp. 531-532) 53
Covenants (Casebook pp. 501-532) 55
Licences (Casebook pp. 533-545) 56
Hounslow London Borough Council v. Twickenham Garden Developments Ltd. [1971] 1 Ch. 233 56
Errington v. Errington & Woods, [1952] 1 K.B. 290 (C.A.) 57
Personal Property 58
Finders (Casebook pp. 546 – 570) 58
General Rule 58
Land Owner vs Finder 58
Bailment (Casebook pp. 571 - 631) 59
Definition of Bailment 59
Bailment versus Licence 59
Sub-Bailment 60
Issues in Aboriginal Title
Delgamuukw v. British Columbia (1997) SCC
Aboriginal Title OUTSIDE of the treaty process
Key Facts
· Gitksan and Wet’suwet’en claim 58,000 km2 in BC. Trial judge did not give independent weight to natives’ oral history of their attachment to the land (since it includes subjective views and myth) and concluded plaintiffs had not proved their historical occupation, hence dismissing the claim.
Origin of Aboriginal Title
· S.35 did not create aboriginal title, just entrenched existing common-law title
· S.35 takes common-law title and applies it uniformly across the country (i.e. applies in Quebec where they have civil law only)
· Flows from assertion of sovereignty as this is what validates the common-law
· At time of sovereignty (BC 1846), aboriginal allodial title became a burden on the crown’s allodial title.
· Aboriginal title existed in its own form before sovereignty.
Content of Aboriginal Title
· “Sui Generis” which means no estates, it is owned communally and inalienable except to the crown
· Existed before assertion of sovereignty and therefore is not completely common-law nor completely aboriginal law, a mix of the two which s.35 attempts to reconcile (main purpose of s.35 is this reconciliation btwn prior occupancy and crown sovereignty).
· Have exclusive right to occupy and use: more than just a right to engage in certain activities.
· Exists in the past, present and future
· NOT a ‘personal right’ in a way that means it isn’t a property right BUT rather it is a personal right in a sense that it is inalienable except to the crown.
Limits of Aboriginal Title
· Cannot do anything to deprive future generations of their claim
· Basis of claim cannot be destroyed by present use ex. if claim based on hunting cannot use land for a strip mine and destroy its purpose as hunting grounds.
· However courts have also said that aboriginal title is not locked into history and modern uses can be engaged in, therefore it is a balancing process.
· Thus the concept of how the land may be used is similar to that of “equitable waste” (which means to destroy interest for someone else) can’t be destructive but can engage in modern exploitation
· None of this blocks the ability of Aboriginal peoples to surrender land to the crown.
How to Establish Aboriginal Title
- Occupation at time of assertion of SOVEREIGNTY (BC ~1846). Occupation defined as both common law ‘possession’ and aboriginal concept of occupation which could be more like land use.
A. CONTINUITY: If using present occupation as evidence of historical occupation at time of sovereignty, must show continuity of occupation since that time. “Continuity” need not be an unbroken chain and nature of occupation can change. Just need “a substantial connection between the people and the land” to have been “maintained”. Substantial maintenance of the connection Test from Mabo. Allowance is made for periods of disruptions (ex. by European settlers).
B. EXCLUSIVITY: Must have been exclusive occupation at time of sovereignty. If other groups were using the area, it would still be exclusive as long as the ability to exclude others existed. Equal weight is given to the common law, factual reality as encountered by Europeans (more literal—actual occupancy) and the Aboriginal perspective, the intention and capacity to retain exclusive control ex. by making treaties or implementing trespass laws. (*Note joint title can be given to two or more aboriginal groups if both had exclusive right to occupy)
C. INTEGRAL: need to show connection to land is of central significance to their culture. Usually simple to do b/c if you occupy exclusively it will clearly be significant. However if occupation was not completely exclusive, this factor can be used to override that requirement and grant title. “Central Significance Test” = substantial connection or sufficiently important. More than incidental.
- Types of Evidence
A. ORAL HISTORY: is ok in this circumstance despite rule against hearsay. Must be considered. Otherwise Aboriginal people would never be able to establish occupation as they have an oral culture.
B. PHYSICAL EVIDENCE: archaeological, written historical accounts etc.
C. ABORIGINAL LEGAL SYSTEM: can be used to establish the exclusive right to occupy
- Factors to consider when establishing occupation
A. Dwellings
B. Cultivation
C. Enclosure of fields
D. Regular use of defined tracts for: Hunting, fishing, other resources
E. Consider: Group’s size, manner of life, material resources, technological abilities, character of land claimed.
Infringement on Aboriginal Title
Can be justified if it is consistent with the fiduciary duty the crown owes Aboriginal peoples.
1. JUSTIFICATION: has to be a legislative object that is compelling and substantial
· Recognition of prior occupation which is reconciled with crown sovereignty
· Reconciliation= Aboriginal societies “are part of a broader social, political and economic community, over which the Crown is sovereign”.
2. FIDUCIARY DUTY: must be consistent with the relationship
· Link between justification and ‘priority’ of Aboriginal Interest
· As little infringement as possible
· Give fair compensation
· Duty to consult or gain full consent
3. EXAMPLES: Agriculture, forestry, mining, hydro-electric power, general economic development, protection of the environment and endangered species, settlement of foreign populations.
Other types of s.35 rights
· Title is just one of many rights protected by s.35
· Appropriate time for establishing these rights are FIRST CONTACT rather than sovereignty which is the time for establishing title.
· Freestanding rights are practices, customs and traditions integral to distinctive culture but not sufficient to support title claim.
· Site specific rights are activities that necessarily take place on land, even a specific piece of land but these activities are still not sufficient to support a title claim.
R. v. Marshall; R. v. Bernard (2005), 255 D.L.R. (4th) 1 (SCC)
· In Marshall, the court re-affirmed (5-2) the Delgamuuk decision.
Facts: Aboriginal men claimed title, (no other aboriginal rights) in defence of a charge of logging without a license in Nova Scotia. Part of the Mi’kmaq Nation: logging area within the range of seasonal use.
Issue: How does the test for Aboriginal title function for nomadic peoples? (how is Delgamuuk applied?)
Majority: NO TITLE
· Translate the aboriginal practice at the time of sovereignty into a modern right—which could be title or a different right.
· The test of occupation from delgamuuk still applies. A generous view of the aboriginal practice should be taken and the court should not exist on exact conformity to the common-law perspective of occupation.
· Consider: group size, manner of life, material resources, technological abilities and character of the land claimed.
· Seasonal or nomadic land use may be enough to satisfy the occupation test for title if they were regular and exclusive.
· Look for the equivalent of European ownership in the Aboriginal culture—did they exercise it over the land in question?
· Exclusivity of occupation is not a wholly common-law concept, but rather is a demonstration of effective control of the land by the group—can draw a reasonable inference that they could exclude if they so chose (just because they didn’t choose to exclude, doesn’t mean that they didn’t have exclusive occupation).
· In this case the appellants did not establish title: there was evidence they used seasonal grounds but didn’t always return to the same ground.
· Also not enough people to occupy the whole area they were claiming.
· No evidence on where they were or how long they were there to conclude occupation. No clear of evidence of use, let alone regular use, of area where the logging charges arose.
· Occasional forays for hunting and fishing not enough to establish title.
· There were many other occasional visitors to the area.
· Land area too large for the small population to retain the capacity to exclude (they did not in fact exclude but shared).
DISSENT:
· The Delgamuuk test for Title practically excludes nomadic or semi-nomadic people
· A different standard or meaning of occupation should be used, which isn’t based on the common-law concept of permanent or intensive physical land use but rather the cultural significance should evidence occupation.
· Aboriginal perspective must shape concept of title, which includes nomadic or semi-nomadic peoples.
· The fact that a group travels around their land and doesn’t cultivate it should not take away a claim to title.
· Pre-sovereignty patterns of use are highly relevant.
· Should be evidenced by the traditions and culture of the group that connect with the land—not by intessive or regular use of the land.
· However in this case they concurred with the majority’s result to not award title based on this different standard/test.
Howell’s Takeaway Point:
· If all you have is seasonal occupation, you have a much more difficult case to make out exclusivity and thus aboriginal title—unless it is a very regular use and understood by other groups that they cannot use it while you are away. (i.e. like a summer cottage).
Cultural Property or Traditional Knowledge
Tangible Chattels: Artifacts
· Who is the rightful owner of Aboriginal artifacts? How should they be returned to the rightful owner?
· Museums have statutory mandate to preserve and display, but did donor have legal right to give/sell, should they be returned to the original group, but which group if there are multiple claimaints?
· Conflict of laws if artifacts are held outside of Canada: Canadian law is not necessarily recognized or received internationally (i.e. can’t apply Canadian law in Italy). Internationally this is problematic—ex. Greece has consistently called for the return of artifacts world-wide with limited success.
· Human remains are particularly tricky because the common-law has not recognized property rights in the human body or human remains. Perhaps this could be dealt with through human-rights legislation more effectively.