Polishing the Jewels in the Crown LandsLands (Amendment) Act, S.N. 2016 Ch. 53
Amendments to Newfoundland and Labrador’s Lands Act took effect in December 2016. Last revised in 1991, the Lands Act provides the framework for access to Crown lands. The expressed aim was to improve access to and management of Crown lands, and the amendments pursued this by simplifying application processes, updating the approach to enforcement, and clarifying the extent of the shoreline reservation on Crown lands. On adverse possession against the Crown, however, an area that was ripe for reform, the amendments merely codified existing case law.
Ministerial decision-making and rule-making: The amendments represent a general increase in the authority delegated to the Minister of Fisheries and Land Resources, the department responsible for Crown lands. For instance, the Minister may make grants, or to waive conditions attached to previous grants, over parcels of land up to 30 hectares in size, rather than the previous 20. Additionally, the Minister may transfer land to other Crown departments or agencies without seeking Cabinet approval.
Through the amendments, the Minister has gained considerable regulation-making authority. The Minister may now make regulations “generally for the giving of effect to the purpose of” two substantial parts of the Lands Act. As well, the Minister has a new responsibility to conduct a review of the Lands Act and regulations under it and to “consider the areas which may be improved.” These two measures mean that the Lands Act is likely to evolve more rapidly in the years and decades to come.
Changes in default rules: Another theme of the amendments is setting a clearer default rule regarding shoreline properties, with the possibility of individual exemptions. The Crown, by default, owns land at the water’s edge. Before the amendments the extent of this reservation varied by geographic circumstance. The shoreline reservation of Crown lands is now 15 meters by default and the circumstances where the Crown may make grants of shoreline land are defined more clearly. As well, the Minister may now make free grants to municipalities for purposes that are in the public interest other than economic development. This open-ended language gives municipalities greater flexibility than the previous law.
Enforcement amendments: The committee tasked with reviewing the Lands Act reported that the most common complaint it heard was that enforcement of the law was lacking. The new amendments clarify and consolidate the rules against and consequences for the unauthorized use of Crown land. As well, the Minister is now specifically empowered to remove unauthorized structures on Crown lands, while retaining previously existing powers to require the person who created the structure to remove it. The government also has the power to recover the cost of removal from the person responsible for the structure. However, the value of fines for unauthorized use has not been increased.
Codification of law on adverse possession against the Crown: Adverse possession, colloquially called “squatter’s rights”, is a legal doctrine that allows one to gain a property right by physically occupying land that by title belongs to someone else. The ability to use this doctrine against the Crown was and continues to be very difficult.
Subsection 36(2) of the Lands Act used to read as follows:
“The period of possession of Crown lands prior to January 1, 1977, which would, by the application of the law pertaining to the acquisition of an interest in land based upon open, notorious and exclusive possession existing prior to the enactment of this section, have been necessary to confer upon a person an interest in that land is considered to be, and always to have been, 20 continuous years.”
In 2013, a case from the Newfoundland and Labrador Court of Appeal, Ring v. Newfoundland and Labrador, 2013 NLCA 66 (CanLII), shed some extra light on this provision’s meaning. The question posed in the case was, does the period of twenty years have to be immediately prior to January 1 1977 – that is, encompassing January 1, 1957 and January 1, 1977? Or could it be an earlier period, like for instance 1930 to 1940? The Court answered unequivocally that it is the former interpretation that is correct.
With the lapse of sixty years since 1957, making out an adverse possession claim against the Crown in Newfoundland and Labrador is becoming increasingly difficult. Nevertheless, the latest amendments, rather than expanding the possibilities for proving an adverse possession claim, simply append the phrase “immediately prior to January 1, 1977” to the end of subsection 36(2) (making for some infelicitous repetition of the date).
While codifying judicial decisions is useful to the extent that it makes it easier for citizens to understand the law from Parliamentary sources alone, this very minor amendment represents something of a missed opportunity. As people who can attest to longstanding use patterns leave either the geographic area at issue or this mortal coil entirely, the adverse possession route to good title will become ever more precarious.
Those who use and occupy land in Newfoundland and Labrador through “squatters’ rights” would be wise to confirm that they have good title against the Crown as soon as possible.
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