THE ABOLITION OF ADVERSE POSSESSION OF CROWN LANDS IN NEWFOUNDLAND AND LABRADOR.

• Author: French, Gregory
• Position: Canada

Introduction

This paper will analyse the impact of the Act to Further Amend the Crown Lands Act, SN 1975-76, No 20, on modem land title in Newfoundland and Labrador. The legislation marked a dramatic change in real property law in Newfoundland and Labrador, where title had historically been grounded on adverse possession of Crown lands. The author argues that the legislative intent behind the 1976 legislation, as evidenced by House of Assembly records, was misconstrued by the Courts, resulting in a subversion of the initial intention of the law, which has persisted to this day. The author examines the issues that have arisen since the passage of the 1976 statute, and suggests that the Province must address the issue of land, in order to fulfill the original intention of the legislature, and why changes are necessary.

It is important to understand the background of land settlement in Newfoundland and Labrador to appreciate the significance of the legislative intervention and the impact that the subsequent evolution of the law has had on Newfoundlanders and Labradoreans. A significant amount of title in this province is grounded in "adverse possession" against the Crown: possession that is not grounded on a conveyance or grant of title from the Crown, but instead based on open, notorious, continuous and exclusive occupation of the land. Such land has never been sold or demised by the Crown, but was instead occupied by settlers without any documentation granting such a right. "Adverse possession" permits such title to vest in the occupier of the land after a defined period.

Part I of this paper canvasses the history of settlement and treatment of real property in Newfoundland and Labrador from the 16th century to the 1970s, which gave rise to the legislative intervention in 1976. Part II discusses the land reform debates of the 1970s and uncovers the original intention of the legislature in implementing changes. Part III critically examines the first case addressing the new amendments, which the author argues undermined the legislative intent of the 1976 amendments and gave rise to the problems encountered today. Part IV examines the evolution of adverse possession against the Crown subsequent to that case. Part V critiques the legislative and judicial approach since 1982, and identifies the practical problems that have arisen for Newfoundlanders and Labradoreans since that time. Finally, Part VI looks to the future to determine possible solutions.

1. An Introduction to the history of Newfoundland and Labrador land possession

   One must first appreciate the significance of adverse possession to the history and society of Newfoundland and Labrador to truly understand the significance of its abolition. (1)

   From its initial discovery, Newfoundland's value was tied to the Grand Banks and its rich fishing grounds. (2) Its value to its European colonizers was for the rewards it could produce for the mother country, and not for the value it could produce for itself. As is well known to Newfoundlanders, its climate is often harsh and its weather unrelenting, and its rocky landscape is poor for most agricultural uses. The earliest of settlers would no doubt have found it a most unwelcoming environment. Because its value lay in the fishing grounds off its shores, its only practical value for many years following its initial discovery was as a port for the British fishing fleets. Its best ports were prized by the captains of these British ships, and as the annual fishery would begin underway from the coasts of England, it became a race to secure favourable grounds. Through the 16th century and in earnest by the 17th century, settlement of the island of Newfoundland began as English crewmen remained in ports at the end of the fishing season in order to preserve access for the following season. As the settler population began to grow in Newfoundland through the 17th century, concern developed in Britain that a permanent population on the island of Newfoundland would result in competition for access to the Grand Banks and its fishing grounds as against the British fleet. A permanent population in closer proximity to those grounds would have a greater advantage against British interests. As a result of these concerns, the Imperial Parliament in London passed laws in the 17th century restricting access to the Island of Newfoundland and ordering occupied lands to be relinquished to British fishing fleets. (3)

   These restrictive laws prevented settlers from obtaining title to their lands, and such titles were expressly not recognized by the British government. These laws would persist until the 19th century, by which point the settler population of Newfoundland had grown to such a level that its presence could no longer be ignored. (4)

   The root cause of modern title issues can be traced back to the Imperial Parliament's refusal to acknowledge the reality of the settler situation for centuries. Settlers would have understood themselves to have a proprietary interest in the land which they occupied, even if that interest was not formally recognised by the Crown. One must bear in mind as well the unfortunate state of functioning civil society in Newfoundland until the 19th century--laws were propagated from England, with an explicit effort to disavow the interests of Newfoundland's settlers. It was not until 1791 that Newfoundland was first granted a formal civil court system (5), and not until 1832 that a legislature was established. (6) For the average fisherman in a rural outport community in the 18lh or 19th century, obtaining a grant to land would have been impossible, if any need existed for obtaining one. Undisturbed possessory title was sufficient for the daily lives of most Newfoundlanders, whose forefathers had obtained their title by the same degree of possession and which was otherwise unfettered by an absentee colonial government. (7) To the extent that the settlers faced interference from English interests, those interferences were transitory at best, given the lack of institutional support for enforcement of the English enactments and the mere seasonal attendance by English authorities. (8)

   Once a functioning judiciary was established in the Colony of Newfoundland, the settler population had some recourse and defence to the otherwise arbitrary decrees from a distant monarch. The history of Newfoundland through the 16th, 17th and 18th centuries is replete with examples of the thorough disregard for the interests of the settler population of Newfoundland and particularly its claims to ownership of land. (9)

   It is noteworthy that the Supreme Court of Newfoundland predates the establishment of the Newfoundland legislature by some 40 years. During this period, the laws of England were to be enforced by the newly established Court "as far as the same can be applied" to the circumstances of Newfoundland. (10) This anomalous circumstance vested an almost legislative power in the judiciary to establish how far English law would be enforced in Newfoundland, as a matter of policy and practice. (11) Early caselaw of the Supreme Court of Newfoundland shows a few examples of the Crown's efforts to control settlement and use of land into the 19th century that were brought before the Court for enforcement. (12) In the earliest of those cases, Rex v Kough in 1819, the Court established that possession of land for a period of sixty years would act as a bar to recovery actions by the Crown, based on the limitation laws in force in England at the time. (13) While the standard of general occupancy was the best and only interest available for centuries, the Kough decision finally allowed the settlers a defence to the Crown's efforts to maintain ownership over the lands of the Colony.

   The situation of possessory land titles in rural Newfoundland was concisely summarized by Justice Kent in Murphy v Moores and Government of Newfoundland in 1938:

   The history of this country shows that a large portion of the public or Crown lands was originally occupied by settlers, who took possession of it without any documentary title and having thus taken possession of it they cleared it, cultivated and lived upon and "worked" it in undisturbed possession for generations and still continue to do so. Much of the land around the coast is at present held by no title other than possession for the statutory period of limitation. Such of them as are fortunate enough to be in a position to prove that exclusive and continuous possession by themselves and their predecessors in title for the statutory period of sixty years may feel secure so long as that proof remains in existence and is available to them. But the proof of such possession depends upon the survival of residents in the vicinity whose memory enables them to describe the facts relating to the land and the possessors and the use of it as they were for sixty years or more before they are called upon to testify; but those who are not so fortunate have no security of title other than that of bare possession which did not avail against the Crown; it being well settled law that nothing short of proof of a grant or of exclusive uninterrupted possession for the statutory period of sixty years raises any presumption against the Crown. (14) This is the situation as it stood until 1976, and it is against this backdrop that the government decided to take action to reform and modernize the law of adverse possession against Crown lands.

2. The Beginning of Land Reform

   By the 1970s, Newfoundland had developed considerably from its colonial roots, and was a modern society in line with its sister provinces in the Canadian Confederation. However, the legacy of centuries of government inaction and laissez-faire settlement patterns had created significant uncertainty in land titles. For generations, settlement and development of land required little formality, particularly in rural "outport" communities. Such...