Why Land Title Clarification?

• The Doctrinal Casebook
• Chapter 3
• Why Land Title Clarification?

Downey and Beals, above, discuss some of the history behind African Nova Scotian settlement in the province and describe how the LTCA and its predecessor legislation was enacted to transform possessory rights into formal land titles. One prominent idea in these cases is that the lack of clear land title is a central cause of economic underdevelopment in African Nova Scotian communities–and is one that can be adequately remedied through legal processes designed to recognize and formalize longstanding possessory rights.

Recent research by Melisa Marsman (currently a Purdy Crawford Fellow at the Schulich School of Law, Dalhousie University) has challenged the idea that we should interpret a lack of clear land title as the predominant cause of racial disparities in wealth in Nova Scotia.¹ Her work asks us to think carefully about the LTCA as an adequate response to those disparities and their historical roots.

In her study, Marsman points out that both white settlers in Nova Scotia and Black Refugees received “tickets of location” upon settlement–that is recognition of their possessory rights short of title. Nevertheless, anti-Black racism was systematically embedded in provincial laws that determined how these possessory rights in land were allocated–African Nova Scotians were granted rights in smaller plots of more marginal lands that were often unsuitable for agriculture compared to white settlers–and they continued to exclude Black Refugees from opportunities to build land-based wealth beyond these initial allocations.

Marsman writes:

Now over 200 years later, the required action is more than simply attaining perfected title to land. The economic consequences attributed to the racial disparities in colonial land allocations, including land quantity, must also be redressed. To be clear, it is not the intention here to condone colonialism. The unlawful wide-scale colonial land settlement practices in this province violated the terms of the treaties with the Mi’kmaq and must be rectified. However, the colonial land settlement activities also oppressed a significant group of African Nova Scotian ancestors, being the Black Refugees, and contributed to longstanding and inter-generational racial disparities in wealth and poverty that must also be redressed. The obscurity in land titles is merely the tip of the iceberg. A more comprehensive objective is needed, one that is aimed at dismantling the systemic anti-Black racism in the law and redressing the harmful imbalance that the law has caused thus far.

Both courts and provincial legislators have emphasized the regularization of possession and the formalization of land titles as a means to redress historical discrimination and ensure economic success in African Nova Scotian communities. Marsman’s perspective offers a lens through which to critically analyze this approach and the deeper relationship between possession and title. What kinds of systematic changes within Nova Scotia’s legal system do you think would better address Marsman’s critique?