Property interests in resettled communities.

Author:French, Gregory

Much of the population of Newfoundland is today centred in urban areas, in towns and cities across the province. This is a recent development in the population geography of Newfoundland. For centuries, settlement was primarily strung along the rugged coastline of the island, where people resided in small, isolated fishing villages known as "outports". As Newfoundland industrialized throughout the later part of the 20th century, these outports depopulated, both by organic population decline and by government encouragement.

However, land titles in these abandoned and resettled communities were never determined with finality. Possessory titles and Crown grants linger on in these communities. Interest has arisen in these potential titles, primarily by people seeking to reclaim family land for potential development or preservation. This paper explores the options available to secure good title to land in resettled communities, and the status of such title in the absence of enforcement. The author suggests that quieting of title proceedings can properly be brought to claim fee simple ownership of property in resettled communities, although there may be restrictions imposed on development in some cases. This paper will explore the development of land title in outport Newfoundland, both in the rise of settlement and the decline of communities, and the status of such title today.

An understanding of the history of settlement and resettlement is necessary to understand the property law system of Newfoundland, and how these title issues in land have arisen.

A Brief History of Settlement

When John Cabot first sailed into the waters off Newfoundland in 1497, the natural bounty of the sea was overwhelming. The wealth of the fishing stocks off of Newfoundland's shores made it a lucrative outpost for the English fishing flee throughout the 16th century. Growth in the nascent colony of Newfoundland began in earnest in the early 17th century, and continued throughout the 18th and 19th centuries. This growth was based solely on exploitation of the fishery. (1) Fishing crews were brought over on merchant ships each spring and, as time went on, crewmen began to remain in the fishing ports during the winter, in order to preserve access in the next fishing season.

However, the British Parliament did not wish to encourage a permanent colonial population, which would lead to a domestic fishery in Newfoundland and competition with the transitory British fishing fleets. Accordingly, settlement on the coastline of Newfoundland was severely restricted. (2) The shoreline of Newfoundland was reserved expressly for the annual fishing fleets, and was declared to be public property by legislative fiat, with instruction to relinquish such property to public use. (3) Penalties for settlement were severe--those who remained and illegally occupied the coastline would be ordered to leave and their property destroyed. (4) Some posit that the draconian laws prohibiting settlement led to the wide dispersal of communities along isolated areas of the Newfoundland shore, and prevented communication and other linkages from developing, so that the existence of settlements could remain secret from those enforcing the British laws. (5) Others note that settlements began with crew members remaining behind to secure fishing grounds and favourable ports on the coast (known as "Ships' Rooms"), and that the wide dispersal of settlements arose because of the need to stake out unclaimed ports for exclusive use and to spread out the fishermen to broaden access to the fishing grounds. (6)

Whether by conscious choice or by incidental development, the end result was that hundreds of small villages developed along the rugged coastline, accessible only by boat and far removed from the resources and services of larger centres. Over time, these seasonal ports grew to become permanent settlements as fishermen stayed over winter and immigrated with families in tow. (7) The reality of the growing settler population of Newfoundland had to be addressed and acknowledged by the British Parliament, particularly with regard to the relatively large settlement developing at St. John's. Ultimately, Crown grants became available in St. John's in 1811, and across Newfoundland in 1824. (8)

By 1816, the population of Newfoundland measured some 50,000, largely spread along the coastline in small outport villages. (9) For centuries, these communities had a single industry--the small-scale inshore fishery, conducted by open boat on the ocean. Some other subsistence activities took hold (though rarely if ever on a commercial scale), including agriculture, keeping livestock, and harvesting timber. (10) Few of these outport communities grew to more than 200 people, and estimates suggest there were some 1,100 outports in Newfoundland by the time of Confederation in 1949."

Economically, these outports had no opportunity to develop beyond their limited focus on the fishery. There was no effort at economic diversification prior to Confederation. Geographic isolation, coupled with a near-total lack of transportation network connecting outports to larger centres, prevented modernity from taking hold. Goods and provisions were provided to the outports by merchants who sold goods and equipment to fishermen on credit, which would be repaid by the fishermen through their seasonal catch. What resulted was the outport population's complete economic reliance on the merchant, who set both the sale price for the goods as well as the purchase price for the catch; outport life became effectively cashless, operating solely on merchant credit. (12) History and academic literature is replete with examples of the abuses that this system engendered.

The impact of this settlement history and longstanding economic feudalism bore itself out in the treatment of real property. For the first centuries of settlement, the mere act of possessing shoreline property in Newfoundland was a prohibited offence. Given that all European settlement in Newfoundland was along the shoreline, this amounted to a blanket repudiation of real property interests of the settler population. (13) Naturally, the ownership of land was given little thought in light of this. (14) Nevertheless, the lack of officially sanctioned land title was no hindrance to the settlement and occupation of the coast for many generations. The lack of governmental intervention in settlement, either in active enforcement of the prohibition on settlement or in granting title to settlers, allowed land title to develop organically in these self-sufficient communities. The freedom to simply occupy otherwise unoccupied land provided little incentive to seek out formal title (a familiar practice to those engaged in real estate law in Newfoundland, even to the present day). In spite of such laissez-faire attitudes to property ownership, the residents of some outports do appear to have obtained Crown grants to their lands, whether for personal investment or because these communities were settled at later dates when title could be obtained by grant.

For the construction of dwelling houses in outports, there was no involvement of banks or other lending institutions. The general state of poverty and lack of cash in the outports would have made it a worthless endeavour for banking, and few fishermen could be expected to qualify for mortgages. Instead, the family and friends of the owner generally built the houses in the community. (15) During the post- Confederation efforts to resettle these isolated areas, the provincial government was concerned about introducing outport residents to "unaccustomed responsibilities", such as "the familiar loan and mortgage", which was "unfamiliar to most outport Newfoundlanders and [viewed] with some misgiving". (16) Mortgages were new and unfamiliar to those who had neither the need nor the resources to acquire one.

Similarly, civil society was weak in rural Newfoundland. Municipal government was nonexistent outside of the city of St. John's, which was incorporated in 1888, and small local councils only began in larger centres in the early 20th century. (17) The spread of municipal governance stopped during the economic collapse of the colony in the 1930s, when Newfoundland voluntarily relinquished its democracy in favour of a Commission of Government appointed by London. (18) Even following Confederation, local government still progressed glacially--by 1961, there were only 94 incorporated towns in Newfoundland and Labrador, comprising 46% of the population. (19) Almost all outports were without any form of local government whatsoever. (20) Indeed, a rural population that had grown accustomed to living so independently was not overly enthusiastic to be subject to a new layer of government and taxation. Many communities resisted even basic municipal structure for fear of paying new taxes, and because of distrust of local government. (21) The lack of any municipal government structure in outports further inhibited comprehensive land titling, as there was no municipal government maintaining tax rolls or other records of ownership. (22)

A Brief History of Resettlement

Outports carried on--even thrived--for the first several centuries of Newfoundland's history. But modernity could not be kept at bay forever. By the 20th century, a railway system had developed across Newfoundland, linking one end of the island to the other, connecting the settlements of the colony to one another like never before. The interior of the island, far removed from the traditional fishery, began to develop industrially as a source of wood, pulp, and paper. Mining projects began in the centre and west of the island. Industrialization came to Newfoundland and offered its young men employment opportunities away from the fishery, which had never before existed.

The true catalyst for change in outport Newfoundland was the outbreak of the Second World War, and the rapid development...

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