Black N.S. man was unfairly denied title to land settled by his family in 1913, court rules
Judge says systemic racism played a part in keeping legal ownership out of reach
A Black Nova Scotia man is one step closer to finally owning the property his family has lived on for more than a hundred years after the province's Supreme Court ruled that systemic racism played a part in keeping the title to the land out of his hands.
In his decision earlier this month, Justice Jamie Campbell said African Nova Scotians "have been subjected to racism for hundreds of years" and said the provincial government has been applying the law incorrectly when considering land claims.
The decision pertains to one piece of property but sets a precedent that could change the way future land claims in predominantly Black communities in Nova Scotia are examined.
Christopher Downey, 66, grew up on the property on which his home now sits in North Preston, one of Canada's most historic Black communities, just outside Halifax. He and his wife moved to Toronto for a while and returned to North Preston 19 years ago to build a home on the land his great-grandfather settled on in 1913.
Downey still doesn't legally own the land.
"It can be frustrating sometimes, but it's a long journey, a long process — and what can you do?" he said in an interview at his home in North Preston.
The issue dates back to the 18th century, when plots of land were handed to Black settlers, including Loyalists who fought alongside the British during the American Revolution and former slaves who sought refuge after the War of 1812.
While white settlers were provided fertile land and deeds for that land, Black settlers were given lots of rocky, infertile soil, and never given legal title.
It's widely believed that this and other aspects of the Atlantic slave trade resulted in intergenerational cycles of poverty for a number of Black communities in Nova Scotia, and means that to this day, many can't get mortgages, loans or even legally pass the land on to their children.
In 1963, the provincial government introduced the Land Titles Clarification Act, legislation intended to provide people in designated Black communities a simpler and less expensive way to obtain deeds.
Then, in 2017, the province also invested $2.7 million to help residents clarify title to their land.
Still, Downey's application was denied last fall because he had not lived on the property for 20 consecutive years.
Supreme court decision
Halifax lawyer Scott Campbell (no relation to Justice Jamie Campbell) says he knew the decision to deny Downey's application was wrong, and helped Downey take the case to the province's top court.
"This is a very important issue, not just to Mr. Downey but also to all of the communities who are supposed to be helped by this piece of legislation," said Campbell.
The court ruled in their favour, saying the government's decision to deny the claim was unreasonable and "inconsistent with the purpose" of the Land Titles Clarification Act, creating a hurdle when the law was intended to recognize historical harms and simplify the process of rectifying them.
In his decision, Campbell said racism "is embedded within the systems that govern how our society operates. That is a fundamental historical fact and an observation of present reality."
The court also noted the Land Titles Clarification Act "contains no reference at all" to a person being required to prove they have lived on a property for 20 years in order to get title to it, noting the government has been incorrectly applying the law since at least 2015.
"Consistent application of an unreasonable standard cannot make it reasonable," Campbell wrote.
Government to review applications
In a statement to CBC News, Nova Scotia's Minister of Lands and Forestry, the department responsible for issuing land title, said the government accepts the court's decision and will quickly change its policy.
"We will continue to look for ways to streamline this process and remove barriers wherever possible," said Iain Rankin.
He also said the government will be reviewing previously denied applications for land title.
The minister said more than 360 claims have been made since 2017, and the owners of 130 parcels of land have been awarded clear title. He said it is unclear how many claims were denied based on residents being unable to prove they had lived on a property for 20 consecutive years.
Angela Simmonds, a lawyer and social justice advocate, who lives in North Preston, has been working on this issue for years.
She urged the government to consult with the community in order to determine who is entitled to land.
'People have died waiting'
"This is not a property issue, this is a human rights issue," she said.
She called the decision from the Supreme Court "trailblazing" but said there are still many residents caught up in bureaucracy.
"I can tell you, people have died waiting," she said.
Downey and his wife, Christesline have just cleared the first hurdle in the process.
The minister will now review their application. If a certificate of claim is issued, public notice will be printed in a newspaper, and others who may have an interest in the land will be given time to make that interest known. Assuming there is no dispute of their claim, title will be awarded to the Downeys.
The couple and their lawyer say they are not aware of anyone disputing their claim to the land on which they have lived for nearly two decades.
"It's not about these individuals trying to take land away from someone.... It's about establishing that they are the true owners of this land," said Campbell.
The Downeys are cautiously optimistic.
"I'm just happy inside that we're finally getting what we want and we never gave up," said Christesline Downey. "I just pray and hope that we don't have to wait that long for them to do it."
She said she hopes her family's success will inspire others in their community to keep fighting until they get what they deserve.