A Crisis Already Made: On the Security of Land Tenure in Newfoundland and Labrador

Precis

In 2020, the author published The Abolition of Adverse Possession of Crown Lands in Newfoundland and Labrador, which explored the evolution of Crown Lands policy in the province as against private land claims. The 2020 paper ended with a caution to government that the existing legislation would soon prove unworkable and had potential to create a crisis in confidence in Newfoundland and Labrador’s land tenure system. This paper will explore the period following publication of that paper, and the catastrophic collapse of the land tenure system in Newfoundland and Labrador that will occur if preventative steps are not taken.

Introduction

This paper examines the treatment of adverse possession of Crown Land in Newfoundland and Labrador in the third decade of the 21st century. In 2020, the author published The Abolition of Adverse Possession of Crown Lands in Newfoundland and Labrador.¹ That paper explored the events leading to, and the passage of, the statutory abolition of adverse possession of Crown Land in Newfoundland and Labrador in 1976. The paper was critical not of the legislation or the initial policy motivations behind it, but of its subsequent treatment by the court, which the author argued had morphed into a policy quite different than the one intended. The paper ends with a plea to examine current policy and legislation and make reforms to return to the original legislative intent. This has yet to come to pass. Worse, legislative amendments in recent years have placed an end date on adverse possession against the Crown, which threatens the stability of the entire real property system in Newfoundland and Labrador.

 Part I examines the immediate development in the aftermath of the paper, including jurisprudence that continues to tighten the strictures of adverse possession. Part II examines the return of the debate to the House of Assembly, and the first movements toward legislative change. Part III examines those legislative changes, and how the situation in practice has developed. In particular, how one legislative change has set in motion a slow-motion crash, where reality and law will come into collision with potentially disastrous consequence. Part IV offers direct solutions and examines the potential to prevent catastrophe before it is scheduled to occur.

Part I – Evolution of the Law Since 2020

For the purposes of this paper, certain background facts must be appreciated by the reader. The historical background behind adverse possession of Crown Lands and its development to the late 2010s is canvassed in the author’s earlier work, and it is recommended that the reader canvass that work as a precursor to this paper.

For the purposes of this paper, it suffices to take note of the prevalence of adverse possession as a root of title in Newfoundland and Labrador. The prevalence of adverse possession arises because settlement of Newfoundland and Labrador began centuries before official recognition of such settlement by the British Crown. Existing settlement was entrenched by the time legislation permitting the granting of land to settlers was made available.² Settlement patterns in Newfoundland and Labrador were widely dispersed along the shoreline in hundreds of small villages with no formal governments, meaning that uncontrolled development and occupation of ungranted lands occurred throughout Newfoundland and Labrador in unmonitored scale across the entire landmass.³ The absence of formal local government or engagement of higher-level government in rural areas, coupled with rural poverty (and poverty generally throughout Newfoundland and Labrador prior to the 20th century), meant that longstanding settlement continued unaffected. There was no impetus for people to obtain formal title, nor after a point was there any active interference with same from the colonial (later provincial) government. The system was best described as “live and let live”: a small population across a large landmass seldom provoked conflict with authorities on matters of land tenure, if left to their own devices.

The legislative amendments analyzed in the 2020 paper are statutorily the only mechanism to dispossess the Crown by adverse possession: requiring open, notorious, continuous and exclusive use and occupation of the property for the statutory period of twenty years before January 1st, 1977: more particularly from December 31st, 1956 to January 1st, 1977.⁴ Recent jurisprudence has confirmed that the pre-1977 law of adverse possession against the Crown (requiring 60 years of open, notorious, continuous and exclusive use and occupation)⁵ was abolished by the 1976 statutory amendments.⁶ This means that the only mechanism to dispossess the Crown  of ungranted land in Newfoundland and Labrador is physical occupation for the statutorily-defined period in the Lands Act.⁷

The end result of this history, and the persistence of adverse possession, is a complete uncertainty about what is and is not “Crown Land” in the present day, and a disconnect with the public on the definition of “Crown Land”. Government’s definition of “Crown Land” operates from the reasonable presumption that all land which is not granted is prima facie Crown Land. A strict interpretation of this presumption comes into immediate conflict with reality because of historical settlement patterns, where settlement existed for centuries before official recognition. The common view of “Crown Land” amongst the public is “unoccupied land”: the vast untouched wilderness across Newfoundland and Labrador. Few people realize that the government’s definition of “Crown Land” intrudes into almost every settlement in the province, up to and including the metropolitan area of the capital St. John’s.⁸

One should note at this stage that there no certainty of how much “Crown Land” there is in Newfoundland and Labrador. An estimate by the Auditor General of Newfoundland and Labrador places the total at 88% of the land area of the province.⁹ The same report also notes that “there was no complete list, or mapping inventory, of all available Crown lands. Additionally, mapping information in the Land Use Atlas was outdated and contained inconsistencies compared to the records management system.”¹⁰ Part of the problem was the loss of Crown Lands records, including thousands of issued grants, in a fire in 1892. By the Auditor General’s estimate, a further 15,000 grants are on file with the Crown Lands Administration, but are unmapped.¹¹ Adverse possession, both historic and ongoing, complicates the calculus as well, as many such claims are unrecorded and undocumented, but remain known – or at least are believed – within communities themselves, with minimal official documentation. Government estimated in the 1930s that as much as 60% of all occupied land in Newfoundland and Labrador was held under possessory title, with general confusion within the public of their land rights.¹² Even those adverse possession claims which are documented at the Newfoundland and Labrador Registry of Deeds remain unknown to the Crown Lands Registry, as both operate under separate government departments in “silos” to one another.¹³

In May of 2021, the Newfoundland and Labrador Branch of the Canadian Bar Association addressed the topic head-on in its report Reforming the Law on Adverse Possession.¹⁴ The problem of interpretation between respective understandings of “Crown Land” between the public and government form part of the background to these recommendations. The CBA-NL recommendations included the establishment of an administrative committee to review and document private land claims, and reconciliation of various recordkeeping sources regarding land ownership into a unified system.¹⁵

Over the next two years, government would take no action in relation to this report, and the status quo continued: the public and the Crown continued to hold conflicting views on what is and is not “Crown Land”. Periodically these positions would come into conflict, most commonly on applications under the Quieting of Titles Act. Under the Quieting of Titles Act, an individual with a claim to land may apply to the Supreme Court of Newfoundland and Labrador to obtain certification of their title.¹⁶ Many reasons may animate such a decision, of which Crown Land concerns may only be one, if Crown Lands enters into consideration at all. Under the Act, the Crown must be served with notice and may take a position that a given parcel is officially Crown Land of which the Crown is not dispossessed.¹⁷

The intervention of the Crown under such applications further shapes jurisprudence relating to adverse possession. The Crown’s argument in such cases is strictly technical: the claimant has not dispossessed the Crown in accordance with the operative possession period. Caselaw has held that purchases from municipal governments do not dispossess Crown Lands;¹⁸ nor do properly-recorded transactions occurring before the cutoff date;¹⁹ nor does partial physical possession of a defined piece for the operative period.²⁰ Even acceptable physical possession for the appropriate length of time under the pre-1977 adverse possession period does not qualify to dispossess the Crown post-1977.²¹ The only period that matters is the discrete legislatively-defined period. Historic possession is no longer relevant. Registered title is not relevant. Physical possession for the operative period may only yield a small fraction of what an individual understood to own and was recognized to own by other sources. However, individuals who did not seek to validate their title with the Crown by way of Grant application or application to Supreme Court under the Quieting of Titles Act would not know they were affected by the problem. Rather, landowners found out one at a time that they were impacted by the legislation and the Crown’s strict interpretation thereof.

One case in particular catapulted the problem to the public’s attention. In November of 2022, the CBC reported on the case of Randy and Pauline Diamond, of Catalina, Trinity Bay.²² In 2021, the Diamonds had applied under the Quieting of Titles Act to obtain title to their home in the Catalina area of the Town of Trinity Bay North.²³ The Statement of Facts filed in first instance recites the history of use and occupation of the land back to 1949, until sold to Mrs. Diamond’s father (one Ancel Duffett) in 1981.²⁴ Ancel Duffett divided the land in the mid 1980s between his children, without proper deeds or surveys, thus necessitating the Quieting of Titles Application.²⁵ The Diamonds built their house in 1984, and had paid property taxes to the municipality since that date. While no other adverse claims were received from the public, estate claimants or from adjacent property owners, the Crown intervened. The basis of the Crown’s claim was that there was insufficient dispossession of the Crown during the statutory period.²⁶ In particular, that while there was agricultural occupation of the land for many years prior to 1965, the affidavits evidencing the dispossession of the Crown recited that the previous owners had “continuously used the property for growing vegetables until the year 1965 […] and having continuously kept the said property under fence from the year 1965 until the year 1981”.²⁷ The insufficient physical occupation from 1965 to the statutory cutoff of January 1st, 1977, was fatal to the dispossession of the Crown. This was notwithstanding the longstanding prior occupation for agricultural purposes, but also notwithstanding the physical occupation of the property with the Diamonds’ dwelling house for forty years prior, and the payment of municipal taxes in relation to the property over the same period.²⁸

The Diamonds’ case put a human face to the legal problem known to real estate practitioners. Mrs. Diamond was a terminal cancer patient, suffering both lung and bone cancer, with a prognosis of three to five years to live, who found herself three years into the legal process when her story made the news.²⁹ The Crown’s approach to the Diamond case prompted calls for reform from the opposition benches, bringing the Crown Lands debate back to the House of Assembly.

Debates in the House of Assembly would reveal that the Diamonds’ case was but one of many where public belief in title ran contrary to Crown Lands determinations, causing real harm to the citizens of Newfoundland and Labrador. ³⁰

Part II – The House Reconsiders – the 2023 and 2024 Debates

The same day as the Diamonds’ story broke on CBC News, the issue was put before the House of Assembly. Progressive Conservative MHA Craig Pardy, who represented the district of Bonavista where the Diamonds lived, put a petition before the House calling upon the House of Assembly “to urge the Government of Newfoundland and Labrador to make a legislative amendment to allow for a mechanism to resolve existing private land claims on Crown Land to revisit the 1976 legislation to abolish squatters’ rights against the Crown.”³¹ Mr. Pardy’s petition referenced the former Progressive Conservative government’s intention to reform the adverse possession law in 2015, which dissipated on their 2015 election loss to the Liberal Party.³² That proposal had included a wholesale reform of adverse possession law, restoring adverse possession against the Crown with a limitation period of 20 years in municipalities and 30 years outside municipalities.³³

The House of Assembly was on break from November 8th, 2022 to January 23rd, 2023. Notwithstanding the break, it appears that the government hearkened to the call of the opposition in relation to the Crown Lands situation, and acted swiftly. On January 9th, 2023, the provincial government announced that they were seeking “public and stakeholder input on amendments to section 36 of the Lands Act.”³⁴ Among those positions for which input was sought were suggestions to shorten the adverse possession period from twenty years before January 1st, 1977 to ten years before January 1st, 1977; setting a definitive limitation period for people to make claims based on possession; and allowing the Crown to release its interest in given lands without formally adjudicating ownership.³⁵

The review process proceeded quickly, with a consultation report released on May 2nd, 2023.³⁶ The report reflected public input to the proposed changes, and notably states that “no responses, across any method of consultation, suggested that the system remain unchanged.”³⁷ On the topic of people who could not meet the strictures of the limitation period to dispossess the Crown, participants in the process “consistently expressed that some manner of consideration ought to be given to occupied lands which do not strictly comply with the 1957-1977 adverse possession period”, but that setting a deadline for adverse possession claims was “viewed by many as contrary to the public interest”.³⁸ The opposition benches acted equally quickly. The MHA for the District of Exploits, Mr. Pleaman Forsey, brought a private member’s motion before the House of Assembly the following day, calling on government “to move expeditiously to bring forward legislative amendments to ensure fair reconciliation of existing claims for people seeking title to the land they have occupied in good faith for generations and which is recognized within their communities, and to take steps, in the interim, to address Crown Land actions against occupied properties in the province.”³⁹

Debate on the Private Member’s Motion was spirited and largely in agreement in sentiment, if not wording, with members for all sides offering criticism of the status quo and supporting the need for reform. The MHA for Bonavista, Mr. Craig Pardy, spoke of multiple examples in his own district of people who had land claims and registered title predating the legislative reforms, whose claims were rejected by Crown Lands.⁴⁰ He offered a pithy synopsis that “it’s like something that we would watch on Robin Hood,” an allusion to the villain of the Robin Hood legend, the Sheriff of Nottingham, made infamous for his administrative mistreatment of his subjects.⁴¹

One PC MHA was critical of government’s approach to the problem, seeking fines and market value for occupied land from people already in possession by some indicia of title.⁴² Another PC MHA noted the problems the status quo poses for future development of land, where government has no knowledge of private land claims and may intrude on them unknowingly.⁴³

One Liberal member noted that “nobody’s to blame for the squatters’ rights situation”, understanding that the problem here is one of historic recordkeeping and reconciliation, rather than one of wrongdoing.⁴⁴ Another Liberal member notes that problems arise from a multiplicity of departments with concentric jurisdiction on land issues, which results in delay and overlapping scopes of authority.⁴⁵

The NDP member for Labrador West, Mr. Jordan Brown, commented at length about how the implementation of Crown Lands claims were disproportionately affecting elderly residents, whose land claims arose many years ago and continued to the present day without interference until the day they needed to sell their homes.⁴⁶ Mr. Brown noted the particular concerns with advancing policies that required landowners, particularly low-income seniors, to spend money to obtain surveys and legal assistance.⁴⁷

A key point is noted in the debate as well: the absence of proactive enforcement. In reply to the Private Member’s Motion, the former Minister responsible for Crown Lands, Elvis Loveless, remarked on this point: “We do not, as a division, a department, or the minister, go out and approach people on this. We investigate title when we’re asked, for purposes of sales or applications by the public”.⁴⁸ The case-by-case nature of the Crown Lands problem arises from this mechanism of enforcement. While the problem is systemic, the enforcement is reactive. Those who come forward to Crown Lands in an honest and good-faith belief in their title will face consequences, while those who ignore the law can continue unbothered.⁴⁹

One member specifically identified the need for an amnesty-based title resolution program, mirroring one which the Crown Lands Administration had operated in the past:

“To give you a bit more history, I’m going back probably a long while, probably in the ‘90s – the early to mid-‘90s. There was a process put in place back then; the minister at the time was Ernie McLean. What it was, there was immunity for one year. People who were on Crown land had immunity to come in to get their land straightened out: one year, no penalty. It worked well.

There was an immunity given to anybody across the Province of Newfoundland and Labrador who was on a piece of Crown Land, not legally; come in, let’s get it worked on. No penalty. They even gave them a reduced rate on the market value and time to pay it off. […] That was a great move back then when Ernie McLean, the minister at the time, brought it in. I was the minister of Municipal Affairs and Crown Lands was under Municipal Affairs at the time.”^{50 51}

The debate on the legislation is illuminating, as it depicts the scope of the problem as encountered by the legislators of the province via their constituents, and their own experiences in government. On review of the debate, every member acknowledges that there is a systemic problem, and approaches the issue with different underlying concerns borne of experience. Ultimately, the Private Member’s Motion was defeated along party lines by a 19-16 vote. The governing Liberal party voted unanimously against, while the PCs, NDP and Independents voted unanimously in favour.⁵²

Notwithstanding the vote, this was not the end of the debate. A year later, the same issue was back before the House. Even though the Private Member’s Motion had been defeated in 2023, the government had proceeded with legislative reform. One recalls that the public consultation produced no justification of the status quo, and the 2023 debate produced unanimous criticism of the systemic problems surrounding Crown Lands administration. In May of 2024, the PC opposition again brought a Private Member’s Motion before the House, asking:

“that this Honourable House urge the government to move expeditiously to bring forward legislative amendments to ensure fair reconciliation of existing claims for people seeking title to the land they have occupied in good faith for generations and which is recognized within their communities; and to take steps in the interim to address Crown Lands actions against occupied properties in the province.”⁵³

Debate on the resolution at this time mirrors that of the previous year: repeated acknowledgment of failures of the existing model and the need to improve the system. One government member acknowledged the seriousness of the systemic flaws to the economic condition of the province:

“The fact that we have a lack of confidence in land title by many households or by many businesses is causing stress: economic stress, financial stress, and anxiety within households and within businesses.”⁵⁴

This position was echoed by the opposition:

“I thank the minister who spoke before me for his frank comments. He had made comments like, he fully realizes that people have a total lack of confidence in titles. They do – they do.”⁵⁵

MHA Craig Pardy’s position on the matter is more than an ephemeral interest: he notes that his district is one of the oldest settled areas of the province, where settlement long predates the establishment of government or the ability of the population to obtain formal legal title, and this problem impacted many of his constituents.⁵⁶ By 2024 the problem had gotten worse, to the point where government-side members echoed the complaints of the opposition:

“I have to thank the Member for Exploits for bringing [the Private Member’s Resolution] forward, because it’s timely, we need to make this front and centre, we need to get on with the action of it, but it is complicated. I think myself, and I’m sure each one of us, could probably sit in a circle and vent about the individual circumstances that we’re trying to fit in the pigeonholes of these regulations. I could, as again my colleague from Bonavista just said, he’s listing off different family names that have struggled and so on, I get it and I can add many names too, to that list.”⁵⁷

The Minister responsible for Crown Lands at the time, the Hon. Gerry Byrne, spoke at length about the challenges to legislative reform, including defining satisfactory possession, the criteria for determining whether possession is met, and recognition of the original abolition of adverse possession in 1977.⁵⁸ This met with some criticism from the opposition members, who pointed out that strict application of the principles of “open, notorious, continuous and exclusive” possession was part of the original problem:

“To me, it’s just about opening up the bureaucracy of the whole situation because you can take any small minute detail of any one of those points and if it’s not proven, then you have a way of saying that it’s no longer your land, it’s our land, it comes back to the Crown”.⁵⁹

Other members were critical of the Minister’s focus on legalism over practicality, noting that legalistic interpretation of recognized occupancy was the origin of many of the problems faced by Crown Lands.⁶⁰

Unlike the previous year, this Private Member’s Resolution passed unanimously. This would be the precursor to the first substantive reforms on Crown Land legislation in a generation. This time around, the debate brought more constituents’ cases to the House of Assembly, outlining the tribulations suffered by the public because of the state of the law:

• The case of the Cullimore family of Bonavista, whose house was built on vacant land in 1968, almost a decade before the law was changed in 1977;⁶¹
• The case of the Abbott family of Bloomfield, whose land was acquired in 1973 and whose house was built on the boundary between an ancient grant and Crown Land, which boundary the Crown insisted upon as the area dispossessed, notwithstanding it ran through the house;⁶²
• The case of an unnamed constituent in St. John’s, whose land was bought before 1977, whose land the Crown contested when he attempted to sell.⁶³

On October 15th, 2024, government announced its intention to make changes to the Lands Act. The Minister responsible for Crown Lands referred to the changes as “some of the boldest and most progressive this province’s Crown lands administration system has experienced in decades”.⁶⁴ The contemporary reporting references the creation of “an independent body to hear appeals” of Crown Lands claims, with the expectation that this body would operate in lieu of a full application under the Quieting of Titles Act.⁶⁵ The discussed changes also shortened the period of adverse possession from twenty years before 1977 to ten years before 1977.

Outside of the legislature, two issues would arise in 2024 to add to the Crown Lands problem.

Firstly, in September of 2024, the Title Standards Committee of the Law Society of Newfoundland and Labrador tabled its report entitled “What Is Good Title?”⁶⁶ This Report arose from a perceived need to address inconsistent real estate practices in the province relating to matters of title. Of significant concern was the treatment of dispossession of Crown Lands and determinations made by solicitors in ascertaining whether or not the Crown was dispossessed of any given parcel. The preceding history since 2020 as reported in this paper, in addition to the substantive issues in this author’s 2020 paper, give some indication of the problems faced by real estate practitioners in Newfoundland and Labrador. The Law Society’s report cautions that “there is no reliable standard for what possession will dispossess the Crown or to what degree” and cautions that “in light of current policies of Crown Lands, any deficiency of title against the Crown must be considered to be a serious title impediment requiring resolution.”⁶⁷

Secondly, on October 29th, 2024, the Auditor General of Newfoundland and Labrador released a report on management of Crown Lands, which was nothing short of damning of the department and its operation.⁶⁸ The Auditor General commented publicly, stating that “After completing this audit, I’m left with serious concerns about the government’s ability to effectively manage this program.”⁶⁹ This included the absence of an inventory of Crown Land, inconsistent records, absence of enforcement, inordinate delays in application processing, failures of due diligence and unauthorized actions by departmental staff.⁷⁰

Against this backdrop, the debate once more returned to the House of Assembly, this time coupled with draft legislation.

Part III – The 2024 Amendments and Their Effect

Bill 68, entitled “An Act to Amend the Lands Act (No. 2)” was tabled in the House of Assembly on November 20th, 2024. Among the many explanatory notes to the legislation are two particular provisions of note. The Bill would “allow certain persons whose claim to Crown Lands was barred under the Act before the coming into force of this Act to make an application in respect of the land under the Quieting of Titles Act, the Act, or another Act, within 5 years of the coming into force of this Act”, and to “require that applications for grants based on adverse possession under section 36 of the Act be made within 5 years of the coming into force of this Act.”⁷¹ These notes took the form of section 20(3) of the draft legislation, which would add a new section 36(6) to the Lands Act, reading as follows: “A person shall not make an application, request or claim under this section more than 5 years after the coming into force of this subsection”.⁷²

The debate surrounding the legislation brought in all of the discussion canvassed in Part II of this paper. More stories of individuals affected by Crown Lands policy were brought into debate: one being the story of an unnamed senior citizen in the District of Harbour Main with Parkinson’s disease had to pay $36,000, plus a $1,000 fine in order to get title to her primary residence, which house she was selling for health reasons.⁷³ Opposition members complained that the legislation did not go far enough, and was no more than a band-aid on the underlying problem, doing nothing to solve the issue of delays and the disconnect between the public and the government about the definition of “Crown Land”. Others complained that the costs of the process were still prohibitive to homeowners, especially to senior citizens whose longstanding possession of their land often came into conflict with government’s position on Crown Land.

What is apparent in the debate is the continued fixation of government on the original abolition of adverse possession of Crown Land in 1977. The Honourable Gerry Byrne, the Minister responsible for Crown Lands, refers at length to the original prohibition, and adopts a view that the legislation intended that possessory claims would die:

“Because as we know, the original intent of the legislation, as done by Gerald Ottenheimer in 1976, in presenting this legislation, said squatters rights, adverse possession, must end.

The fundamental principle behind this was that adverse possession against the Crown would end when the pool or the availability of affiants would not longer be available because they would age out.

To put this in clear context, what this Legislature decided back in 1976 was upheld and supported by not only that administration of Frank Moores, but the Brian Peckford Administration, the Clyde Wells Administration, the Brian Tobin administration. I could go on and on. But every administration until this administration has said adverse possession must stay as it is, and let it fulfill its formal and natural legacy of ending so that no one can get access to it, and those who cannot get access to it shall pay the price through the courts of having their land removed from them. […]

So what we have done here, we have put in a place where, Madam Chair, respectfully, I will not accept the advice of the Progressive Conservatives and see that this is no longer available, this tool to get access to land is no longer available to anyone in our province.”⁷⁴

While the Minister took the position that the legislation was ameliorative and would avoid a strict interpretation of the law that took people’s land from them, the legislation did exactly that. A proposal of an exceptional program for people’s primary residence had been announced earlier in November, but was limited to only residential properties within municipalities or local service districts occupied as primary residences as of October 15th, 2024.⁷⁵ Thousands of people in Newfoundland and Labrador reside outside of municipal entities, and thus are ineligible for this program. This program also does not address commercial properties, non-primary residences (i.e. rentals, cabins, vacant properties), properties which were not occupied by the applicant as of the effective date, estate properties, vacant land, farmland or commercial properties. It also imposes a lot size of 1,860 meters: a relatively small lot size, particularly in rural areas where homes are serviced by individual well and septic systems requiring larger lots to accommodate both.

Concern over the five-year period came up time and again in the November debates. One opposition member noted the impossibility of the task, particularly in light of the Auditor General’s report released one month prior, indicating that Crown Lands Administration was hopelessly behind its stated service window for addressing files.⁷⁶ The Minister himself confirmed the intention was for claims to at least be commenced within the five year window, rather than completed:

“What the error of omission may have been is that the entire process does not have to be concluded in 60 months. It’s just that an application has to be received within the next 60 months. So in other words, you’ve got to put your application in by 2029 or 2030, around there, if I’m doing my math right. I think that could be achieved.”⁷⁷

The Minister’s approach to this appears to be grounded in a belief that individuals are required to file an application for Crown Land even in circumstances where solicitors are satisfied that the land is adversely possessed from the Crown:

“I would argue that the first thing the lawyer should have done – because the lawyer said we have to get this transaction done in 30 days. So we can’t do an adverse possession application in 30 days, so will you take – she says to the client – my certificate saying that I believe that it’s okay for you, down the road, to file an adverse possession claim? That’s what it is. Hopefully the lawyer then said to the client, now take that certificate and all the evidence of it and try to get an adverse possession application in the system as soon as you possibly can, because as the adverse possession headline reads, abolishment of adverse possession. So it’s really in your interest to get that application in as soon as possible.”⁷⁸

This approach fundamentally misunderstands the title certification process or the operation of real estate law. Solicitors do not issue a “certificate of title” to their clients. Title in Newfoundland and Labrador is not guaranteed by government, but is premised on the opinion of the reviewing solicitor, as it is in all registry-based jurisdictions.⁷⁹ The law has never required an application to be made for Crown Land where the Crown is dispossessed by adverse possession, nor has legal practice in Newfoundland and Labrador ever required same.⁸⁰ For over one hundred years, solicitors have relied on documentary title at the Registry of Deeds, as bolstered by affidavits of possession recorded at the Registry of Deeds, as suitably dispossessing the Crown.

From a practical standpoint, the same concerns discussed in the Hansard and in the author’s 2020 paper illustrate why this is so: a Crown Grant application may be waylaid for months, even years, in a bureaucratic morass. If the Crown is dispossessed, the grant is merely confirmatory. It confirms the same title information already gathered, and adds nothing to the chain of title that is not accomplished by the affidavits alone.

With some minor amendments, Bill 68 passed and the Lands Act was accordingly amended.⁸¹ While the legislation is not without its salutary effects, the ultimate cutoff period of five years was incorporated with it. This has created a circumstance which can only be termed a crisis.

Part IV – Avoiding Imminent Catastrophe – How Can Government Respond?

This paper is entitled “A Crisis Already Made”, because this is not a “crisis in the making”. The groundwork for disaster is already laid, and as demonstrated in the preceding parts, the circumstances are well known to government and to the legal profession. The circumstances are unfortunately poorly understood by the public, whose misapprehension on the definition of “Crown Land” means they do not appreciate the danger in which they find themselves.

The situation was worsened again by subsequent jurisprudence. In Robinson v. Newfoundland and Labrador, an applicant applied to obtain title to land which her family had occupied from the late 1800s until the mid 1960s, with a house remaining on the land until 1971.⁸² The land fit the period of dispossession required before the 1977 legislative amendments, being 60 years of open, notorious, continuous and exclusive use and occupation.⁸³ The Court held that the 1977 amendments operated retrospectively, meaning that any land dispossessed under the pre-1977 law had to meet the new 1977 requirements to dispossess the Crown. Possession which did not would re-vest in the Crown.

Consider the following real-life example. The prominent Tessier family maintained a substantial estate in the west end of St. John’s from the mid 19th century, however there is no grant indicated to the property.⁸⁴ The Estate residence and property were left derelict and abandoned by the 1950s,⁸⁵ and the house was torn down by the City of St. John’s in January of 1966.⁸⁶ The area was developed into a residential subdivision of over two dozen homes beginning in 1973.⁸⁷ Applying the Robinson decision, the century of residential use and occupation was of no relevance to dispossessing the Crown. Only the limited ten year period from December 31st, 1966 to January 1st, 1977, is of relevance, and for that whole period the property must be openly, notoriously, continuously and exclusively used and occupied, and dispossession is limited only to the physical footprint so occupied without regard to documentary title.⁸⁸ The manor house was torn down in January 1966, and the estate subdivided several years later. The Robinson decision may effectively revoke title to the whole Tessier Estate (currently a residential subdivision), given that the Estate was vacant from 1966 until the early 1970s.⁸⁹ This is notwithstanding that title may have been acceptable under the law as it stood when development began, based on over sixty years’ occupation by the Tessiers. Do the owners of residences in such a subdivision appreciate that they are required to seek out Crown Grants, notwithstanding over a century of registered deeds tracing back to a prominent family, and over fifty years of occupation of their dwellings? This is but one example. How many other property owners throughout the province are impacted similarly? The number is unknowable, but believed to be significant.⁹⁰

The status quo as of the date of writing is nothing short of a “slow motion train crash”. The problem is visible to all who understand property law in this province and the scope of legally-defined “Crown Land”. With a deadline for all “claims” against the Crown set to come to a head in three years, the disaster is already set in motion.

The ongoing problem of adverse possession against the Crown is only tepidly resolved by the 2024 amendments, and made significantly worse by the addition of section 36(6), setting a five-year period after which no “application, request or claim” can be made in reliance on section 36 of the Lands Act.⁹¹

What does Section 36(6) mean? Apply Driediger’s Principle to the reading of the statute: read the words of the Act in their entire context, in the grammatical and ordinary sense, harmoniously with the scheme of the Act, the object of the Act, and the intention of the legislature.⁹² Apply as well the presumption against tautology, that every word in the enactment carries independent meaning.⁹³ Thus, section 36(6) eliminates “applications”, “requests” and “claims”, being three separate constructs which appear to be available under section 36, after five years from the date of passage.⁹⁴ If each is an independent concept, one must consider the definitions of each term. “Applications” seem straightforward, which seem to apply to either or both of applications made under section 36(3) or (4) the Lands Act, or “applications” made under the Quieting of Titles Act.⁹⁵ The language of “application” is consistent with both being prohibited, there being no limiting language in the statute. The ability to make any “application” is what is terminated, regardless of the statute being applied under. “Requests” are not defined anywhere, but seem to import a notion of asking government for title in some form, applying a plain and ordinary meaning of “request”. “Claims” is a much more problematic term, since Newfoundland and Labrador’s Registry-based title system is wholly founded on “claims” on land, which are assessed by solicitors in determining title. A “request” implies that the assertion is directed to an authority, whereas a “claim” as a distinct concept implies no such direction. One “claims” land in ordinary language by asserting ownership. That is how the Registry-model of title works in Newfoundland and Labrador.

On this interpretation, if no action is taken, effective December 4th, 2029, it appears that all possessory-based titles in Newfoundland and Labrador will be terminated, as no “claims” may be made under section 36 of the Lands Act. Certainly there will be no mechanism to obtain title based on a claim, if neither “requests” nor “applications” may be made under section 36. Ministerial statements in the House of Assembly confirm the intention at the time of passage was to bury adverse possession against the Crown once and for all. One must therefore draw the unavoidable conclusion that the legislation formally ends the ability to rely on possessory titles.

While ameliorative programs have been made available under the 2024 reforms, they are of limited utility. Firstly, the number of people who may avail of the Primary Residence Property Title Program is artificially small. As noted previously, it does nothing for many other classifications of property, such as secondary homes, rentals, commercial properties, or vacant land. It limits the lot size to a level where its utility in rural areas without municipal water and sewer services is negligible, as such rural properties may be too large to fit within the 1860 square meter maximum size. It also does not include the thousands of people residing in unincorporated areas of the province, which are in neither municipalities nor local service districts.⁹⁶

Secondly, the problem is that those who are in need of the Primary Residence Program also need to know that they need to apply. For many homeowners throughout the province, they have no such knowledge of the state of their land title. They may know that a lawyer has signed off on their land purchase. They may know that the land has been in their family for generations. They may have deeds or other indicia of title. But do they know that they are on what is legally defined as “Crown Land”? Consider the case of the Tessier subdivision. Owners who have been in occupation for decades or who trace their ownership back decades, even centuries, would have no reason to expect they are affected by what may be “Crown Land” by strict application of law.

What is only tangentially referenced in the May 3rd debate is the conflicting definition of “Crown Land” as understood by government, versus “Crown Land” as understood by the public. While all debate circulates on those in occupation of Crown Land and the need to reconcile the claims, what is unspoken is that one must appreciate that they are on “Crown Land” in the first place in order to come forward. The Land Use Atlas is the Provincial Government’s tool which overlays the location of known grants.⁹⁷ The information on the Land Use Atlas is known to be incomplete, insofar as thousands of grants have been lost or are unmapped by the Crown Lands Administration.⁹⁸ However it also accurately depicts that certain populated areas are in fact ungranted, or at least not known to be granted by the Crown Lands Administration. When the issue of this disconnect was brought to the Minister’s attention in November 2024, he responded by suggesting that the remedy would be to terminate public access to Crown Land mapping:

“If [the Land Use Atlas] is causing confusion, I’ve asked my deputy as of today, because this seems to be creating confusion, we will happily take the Land Use Atlas down. If it’s not achieving what it was supposed to do and if people are feeling as though this was a hindrance to good information going out, maybe it’s time to take the Land Use Atlas down. But that’s what it was intended to do. That’s what it says right up front, is that this is a tool; do not consider it to be a descriptor of legal title.”⁹⁹

Such a suggestion is nothing short of appalling to the real estate bar. The Minister’s suggestion is that public access to information should be curtailed because it provides undesirable answers. This suggestion also completely misses the point of the opposition inquiry: the fact of the matter is that large portions of populated areas are in fact ungranted. Disclosing their ungranted status is key to both identifying the problem and resolving it. But the public must be aware of what the government considers “Crown Land.” Minister Byrne’s commentary on banning access to the Land Use Atlas is prefaced by a discussion that Prescott Street (a major thoroughfare in the centre of downtown St. John’s) is identified on the Land Use Atlas as ungranted “Crown Land”.¹⁰⁰ The Minister’s suggestion was that his department’s mapping was causing confusion and should not be taken at face value. If the Minister himself is unable to determine the scope of Crown Land using his department’s own records, what hope is there for the average resident?

The foregoing discussion and review of debates and jurisprudence ought to concern all real property practitioners in Newfoundland and Labrador, and in anyone who deals with property in this province. The simple truth of the matter is that there is no confidence in the accuracy of Crown Lands records, either by the Auditor General or by government itself. The hostility of the government’s approach to private land claims is well known to practitioners, to the point where the Law Society of Newfoundland and Labrador has cautioned the practicing bar that there is no certainty in what will dispossess the Crown.¹⁰¹ In ordinary circumstances, this would be a very bad situation. Being almost two years into a five-year countdown to the abolition of all “claims” of adverse possession against the Crown, the situation is cataclysmic.

The situation has risen to a level that is now of national concern, as the security of tenure in Newfoundland and Labrador is integral to the real estate and mortgage industry. The Canadian Bar Association’s national office has reached out to the Government of Newfoundland and Labrador to express its concerns about the real estate system in Newfoundland and Labrador, and its impacts on the national banking and title insurance industries.¹⁰²

What, then, is government to do? Unlike the author’s 2020 paper, which takes an agnostic approach on solutions, the crisis in Newfoundland and Labrador cannot be put over to another day, and it is incumbent on the practicing bar to comment with recommendations based on experience.

First and foremost, Section 36(6) must be repealed. The volume of claims on Crown Land is impossible to know for certain, but a canvass of the Land Use Atlas gives some indication of the scope of the problem. Substantial areas of major population centres are ungranted, including Bonavista, Carbonear, Harbour Grace, Torbay and even St. John’s.¹⁰³ The visibly impacted properties on the Land Use Atlas on ungranted lands number into the thousands. Provincewide, the number is likely into the tens of thousands, spread across hundreds of communities. Legislative debates in 2024 criticized the five-year window as being unrealistic, and with three years remaining, it is assuredly less realistic today. If every affected person filed an application, the system – already struggling under the weight of ordinary operations – would be flooded beyond functionality.

Repealing Section 36(6) only returns to an unsatisfactory status quo. While the proverbial Sword of Damocles is removed, it does not change the uncertainty inherent in the system. The 2024 legislation did not positively address the systemic failings of the Newfoundland and Labrador property law system. Multiple policy avenues are open to government, which are explored at some length by the Canadian Bar Association – NL Branch’s 2021 report.¹⁰⁴

These options include a re-introduction of adverse possession against the Crown, recognition of solicitor-certified title by government, or a public amnesty program to normalize deficient titles and undocumented land claims. All options were recommended by the CBANL in its 2021 report. The national CBA Real Estate Section recommended following policies enacted in other provinces, such as Ontario and Nova Scotia, allowing for government to accept solicitor certifications of title, or to approve titles on ungranted land by an administrative system.

The ability of solicitors to certify title in accordance with established standards would be one manner to solve the problem without incurring significant cost on government. Under the current Registry model, solicitors already opine on title to their clients, to represent whether or not title is sufficiently sound to purchase or mortgage. Allowing a solicitor’s opinion on title to formally divest the Crown would go a significant distance to resolving the impasse between government and the public on the question of legitimate occupancy of ungranted land. Such a procedure is followed in other provinces as a precursor to registering title under the transition to a Torrens-style Land Titles system whereby registered title is guaranteed by government.¹⁰⁵ This approach would remove Crown Lands from the administration of occupied Crown Land, outsourcing such title work to individual landowners via members of the Law Society of Newfoundland and Labrador.

If government were unwilling to cede determination of titles on ungranted lands to outside parties, then an administrative process may be instituted, allowing those who learn their title is defective to have their titles validated by a tribunal. Such a process operates in the Province of Nova Scotia.¹⁰⁶

The explanatory notes to Newfoundland and Labrador’s Bill 68 contemplate a sort of tribunal approach, by creation of “regional appeal boards” for those whose possessory claims are rejected by Crown Lands staff. The Newfoundland and Labrador appellate-tribunal approach is doomed to fail. Firstly, it requires an applicant to have made a grant application in the first place, which requires the initial knowledge to first apply for a grant, then for that grant to be rejected by Crown Lands staff. This does not overcome the stated problem that individuals do not know they are affected by the disconnect between public and government conceptions of “Crown Land”. Secondly, the stated basis for appellate in the legislation is limited to “consider[ing] and decid[ing] an appeal in accordance with this Act and the regulations”.¹⁰⁷ If the Appeal Board is bound to the current state of the law, including strict application  of the 1966 to 1977 dispossession period,¹⁰⁸ inability to consider registered paper title,¹⁰⁹ inability to consider historical use and occupation,¹¹⁰ payment of municipal taxes,¹¹¹ or other reasonable indicia of title, then any appeal is condemned to failure before it begins. The problem faced by the citizens of Newfoundland and Labrador is not that Crown Lands Administration makes erroneous decisions on the facts. Rather, the problem is that the statute and the jurisprudence are so disconnected from reality that the correct application of the law causes the very harm complained of, when the law is executed correctly. Put succinctly, the decisions may be said to be “legally right but morally wrong.” If that is the case, then “legally right” will prevail on every appeal.

If a different standard could be applied by Regional Appeal Boards, then it stands to reason that the standards of review could be changed for Crown Lands staff reviewing applications on first instance. Changing the first-level review standards may render the appellate tribunals unnecessary. That would require a revision to section 36 of the Lands Act, as recommended by the Canadian Bar Association – NL Branch in 2021.¹¹² Such a solution would require legislative change to section 36 of the Lands Act. It will still be necessary for government to resolve the outstanding definitional problem of “Crown Land” between public understanding and government’s records, but providing a mechanism to obtain title that is not strictly hidebound to physical possession for a defined ten-year period ending in 1977 would go a significant distance in normalizing existing title claims.

Conclusion

Whichever approach government may elect, it is clear today that some approach must be taken, and must be taken soon, in order to restore confidence in Newfoundland and Labrador’s property law system. The existing legislation has set an expiration date on tens of thousands of property titles in Newfoundland and Labrador, which has the potential to wholly undermine the province’s real property system. If the expiration date comes to pass without changes being made, there is a potential loss of billions of dollars in real property value, including losses to the mortgage industry, losses in home equity, and significant losses to insurers of real property and the legal profession. It is incumbent on government to act before it is too late, as the clock continues to tick down to zero.

End Notes