Land Title and Possession in African Nova Scotian Communities

General Introduction #

This week, we continue to build our understanding of the relationship between possession and title that is so foundational to common law property. Our overarching question in Week 6 is as follows:

We start by taking up this question in a particular place and context: recent movements to “clarify” land titles in African Nova Scotian communities as a means to address economic disadvantage and an unequal distribution of land as a consequence of discriminatory land policies in the province. These movements have placed heavy emphasis on the regularization and formalization of land titles for individuals and families who have long been in possession of land, and can help us to understand–and develop a critical perspective on–the social and economic role of legal title.

Introduction to Materials #

This week, we will explore a contemporary case study of possession and title to understand how these concepts were developed in the classical legal style and the continuing influence of that way of thinking. Several African Nova Scotian communities today are experiencing the consequences of unclear legal title to community members’ lands. These circumstances “stem from a history fraught with racism, oppression and inequity”¹. As Justice Campbell observes at paragraphs 4-5 in Downey v Nova Scotia, below:

African Nova Scotians have been subjected to racism for hundreds of years in this province. It is embedded within the systems that govern how our society operates. That is a fundamental historical fact and an observation of present reality.

That has real implications for things like land ownership. Residents in African Nova Scotian communities are more likely to have unclear title to land on which they may have lived for many generations […]

Some of the history behind African Nova Scotians’ unclear land title is outlined in Beals v Nova Scotia, below. Addressing this history and its current consequences helps us to understand how the interplay of possession and title to land matters. For African Nova Scotians who continue to be denied title to their lands, state demands for individuals to “prove” their possession have become both a tool of systemic racism and a means to deflect responsibility for a long history of discrimination.

Start by reading the included excerpts from the Land Titles Clarification Act and from Beals v Nova Scotia for background to this case study. We will then examine the following questions:

What rights does the common law afford to those in possession of land (but without title)?

What is adverse possession and how does this doctrine foreground the classic liberal dynamics of competition in disputes over land?

Finally, we will return to some recent litigation in Downey v Nova Scotia concerning land titles in African Nova Scotian communities to examine the impact of common law doctrines around title and possession.