PROPERTY
PROPERTY ................................................................................................................................................... 1
Germany ......................................................................................................................................................... 2
89 BVerfGE 1 (1993) ............................................................................................................................. 2
India ................................................................................................................................................................ 6
GENERAL FEATURES OF THE STATUTES DEALING WITH LAND REFORMS IN INDIA .......... 6
RIGHT TO PROPERTY AND THE LEGISLATIVE AND JUDICIAL ATTITUDE .............................. 7
Anantha Prbhu v.District Colector : AIR 1975 Ker 117 ....................................................................... 10
ZIMBABWE: ............................................................................................................................................... 10
Hewlett v Minister of Finance & Another 1981 ZLR 571 S Crt: Repeal of Victims of Terrorism
(Compensation) Act. Debts owed by the state, such as those arising from the actual awards of
compensation, are ‘property’ within the meaning of Constitution. ....................................................... 10
CW v Commissioner of Taxes 1988 (2) ZLR 27 (HC): State could not erode compensation by taxing
it. Reasonable justification in a democratic society. ............................................................................. 10
Mhora v Minister of Home Affairs 1990 (2) ZLR 236 (HC): Deprivation of benefits, including
accrued salary, pension and medical benefits, without compensation would be an acquisition of
property ................................................................................................................................................ 11
Chairman, Public Service Commission v Hall 1992 (2) ZLR 271 (S): The power to fine a public
officer for misconduct was not in violation of the Constitution ............................................................ 11
Nyambirai v National Social Security Authority & Another 1996 (1) SA 636: Laws making
provision for acquisition of property in satisfaction of tax or rate where that law is reasonably
justifiable in a democratic society. Government , better placed than the judiciary to appreciate what
was in the public interest. Three criteria used in test: legislative objective sufficiently important; self
evident rational connection between the objective and the measures; means used impair rights no more
than necessary. ...................................................................................................................................... 12
NAMIBIA: ................................................................................................................................................... 13
Right to own property ............................................................................................................................... 13
De Roeck v Campbell & Others 1990 NR 126: Laws of execution; rights of debtors and creditors;
rights of peregrini and incolae. ............................................................................................................. 13
UNITED KINGDOM ................................................................................................................................... 13
Expropriation: ....................................................................................................................................... 14
Local Government Powers,................................................................................................................... 14
Property rights may be infringed: ......................................................................................................... 14
Warrants usually required before enter and seizure: ............................................................................. 14
EUROPEAN COMMUNITY ....................................................................................................................... 14
Papamichlopoulos v Greece EHRR 1993: ........................................................................................... 14
Wiesinger v Austria 16 EHRR 258 1991: ............................................................................................ 15
Scotts of Greenock Ltd and Lithgows Ltd v United Kingodom 12 EHRR 97: ..................................... 15
Ciba SA and Others v Ufficicio Centrale Brevetti 1979 European Commercial Cases (ECC) 67 ........ 15
KATIKARIDIS AND OTHERS v. GREECE (72/1995/578/664) 15 November 1996: Impossibility
of obtaining full compensation for expropriation of part of properties fronting a road because of
irrebuttable presumption that the benefit derived from road improvements amounted to sufficient
compensation. Expropriation pursued lawful end in the public interest ............................................... 15
PRÖTSCH v. AUSTRIA (67/1995/573/659) 15 November 1996: Interference (provisional transfer
of land) considered -- need for a proper balance between demands of community's general interest and
requirements of protecting fundamental rights of individual - - temporary disadvantage may be
justified in the general interest if not disproportionate to aim pursued. -- Aim of consolidation: improve
infrastructure and pattern of agricultural holdings. ............................................................................... 18
GUILLEMIN v. FRANCE (105/1995/611/699) 21 February 1997: length of proceedings to
challenge expropriation and to secure compensation, ........................................................................... 22
AKKUS v. TURKEY (60/1996/679/869) 9 July 1997: depreciation through inflation of additional
compensation for expropriation caused by authorities' delay in payment -- "entitlement to the peaceful
enjoyment of possessions" .................................................................................................................... 23
THE NATIONAL & PROVINCIAL BUILDING SOCIETY, THE LEEDS PERMANENT
BUILDING SOCIETY AND THE YORKSHIRE BUILDING SOCIETY v. THE UNITED
KINGDOM (117/1996/736/933-935) 23 October1997: Applicants’ legal claims to restitution of
monies paid under invalidated tax provisions extinguished under the effects of retrospective legislation
-- Whether there was an unlawful expropriation of applicants’ assets – Meaning of ‘possessions’ -interference -- whether interference was justified. ................................................................................ 24
LAND POLICY IN CANADA ..................................................................................................................... 26
Torgeson, 'Indians Against Immigrants', 14 Am. Indian L.Rev. 52, *62. ............................................. 27
Opetchesaht Indian Band v. Canada [1997] 2 S.C.R. 119: Indians -- Reserves -- Permits to use
Indian reserve lands -- Right-of-way -- Validity of permit granting public utility right-of-way for
electric power transmission lines across Indian reserve -- Right-of-way granted for such period of
time as required for purpose of transmission line -- Nature and duration of rights granted under
permit -- Whether rights granted within scope of Indian Act -- Whether permit valid -- Indian Act, . 28
St. Mary's Indian Band v. Cranbrook (City) [1997] 2 S.C.R. 657: Indians -- Reserves -- Definition
of "reserve" amended to include "designated lands" released or surrendered "otherwise than
absolutely" -- Reserve lands surrendered at market value for airport but with the proviso that land
would revert to reserve if not used for public purposes -- Whether lands surrendered for airport
"designated lands" -- Whether common law real property principles apply to surrender of Indian
reserve lands......................................................................................................................................... 31
Delgamuukw v. British Columbia [1997] 3 S.C.R. 1010: Aboriginal rights -- Aboriginal land title -Claim made for large tract -- Content of aboriginal title -- How aboriginal title protected by
Constitution Act, 1982 -- What required to prove aboriginal title -- Whether claim to self-government
made out -- Whether province could extinguish aboriginal rights -- Evidence -- Oral history and
native law and tradition -- Weight to be given evidence ...................................................................... 32
R. v. Nikal [1996] 1 S.C.R. 1013: Aboriginal rights -- Fishing rights -- Appellant charged with fishing
without a licence -- Whether licensing scheme infringing appellant's aboriginal rights and therefore not
applying to him ..................................................................................................................................... 40
Germany
GBL Article 14.
1. Property and the right to inheritance are guaranteed. Their content and limits shall be
determined by the laws.
2. Property imposes duties. Its use should also serve the public weal.
3. Expropriation shall be permitted only in the public weal. It may be effected only by or
pursuant to a law which shall provide for the nature and extent of the compensation. Such
compensation shall be determined by establishing an equitable balance between the
public interest and the interests of those affected. In case of a dispute regarding the
amount of compensation, recourse may be had to the ordinary courts.
The language requires editing:
89 BVerfGE 1 (1993)
[Facts:
2
Petitioner here and defendant below (hereinafter tenant) was living for rent in the house
of plaintiff below (hereinafter landlord). The house consisted of two sides and each side
consisted of two floors. Each floor on both sides formed an individual apartment, that is,
the entire house contained four apartments. Each side of the house had an individual
entrance. The landlord herself was living on the first floor of one side of the house, the
tenant/petitioner here was living on the second floor of the same side. The son of the
landlord was living on the first floor of the other half. (The decision does specify who
was living on the second floor of the other half.)
The landlord terminated the lease of the tenant. Her justification for the termination was
that she needed the apartment occupied by the tenant for herself, in particular, she wanted
her son to move into the apartment now occupied by the tenant. She reasoned that the
combination of her old age (born in 1912) and her weak health (she suffered from a
disturbance of her sense of balance) was a sufficient justification for her desire to have
her son live physically closer to her. She maintained that living in the same side of the
house would make a huge difference because such an arrangement would permit her son
to visit her without having to step outside. Tenant refused vacate the apartment. The
landlord then went to court and succeeded in getting an eviction in the trial court. The
district Court upheld the eviction.
The constitutional complaint leading to this decision challenged the decision of the trial
court and the conformation of that decision in the district court. The tenant argued that the
eviction ordered by the trial court was in violation of his basic rights as protected by the
Basic Law. In particular, the tenant alleged violations of his basic rights as guaranteed by
Articles 2.1., 3.1., 13., and 14. of the Basic Law.
Issue:
Is the court-ordered eviction of tenant in violation of tenant's basic rights?
Holding by the First Senate:
No, it is not.
Discussion:
First the court found the constitutional complaint permissible as far as it related to the
district court's holding.]
C.
As far as the constitutional complaint addresses the holding of the district court, it is
unjustified.
I.
Article 14. of the Basic Law is not violated.
1. The petitioner cannot appeal to Article 14.2. of the Basic Law. This regulation merely
is a guideline for the legislator in determining the content and limitations of property
(Eigentum)... (Article 14.2. second sentence of the Basic Law). It obligates the legislator
in the ordering of landlord/tenant law to take adequately into consideration the concerns
of tenants (*), however, it does not elevate [the protection of tenants] to a subjective basic
right guarantee (*).
2. In the matter at hand, however, the petitioner alleges that he as a tenant is being
violated in his property right under Article 14.1. first sentence of the Basic Law. The
Federal Constitutional Court has until now left open the question whether the right to
3
occupy (Besitzrecht) of the tenant in the rented apartment flowing from the lease is
property (Eigentum) in the meaning of the guaranteed right (Freiheitsgewaerleistung).
[This question] is to be answered positively.
a)...
Housing represents for everyone the center of the private existence. The individual
depends on the usage of it for the satisfaction of elementary needs of life as well as for the
securing of freedom and the development of his personality. The majority of the
population, however, cannot refer to property for the satisfaction [housing needs] but is
forced to rent housing. The right to occupy of the tenant in such circumstances serves
functions [that are] typically being served by owned property (Sacheigentum). This
importance of housing has been taken into account by the legislator in arranging
[landlord/tenant law...]
The legal [position] of the tenant finds its expression, among other things, in the
protective rights of the tenant against everyone else. He is authorized to use the rented
housing (see Section 535 first sentence, Section 536 of the Civil Code). If this [usage] is
being interfered with in an illegal manner, he can demand a removal of the disturbance
and an injunction against further disturbances (see Section 861.1., Section 858.1. of the
Civil Code). If his right to occupy is being taken away illegally, he can demand to regain
such right (see Section 861.1. of the Civil Code). These rights are enforceable against
everyone, that is also against the landlord... Illegal interference with the right to occupy
impose upon the perpetrator a duty to pay damages according to Section 823.1. of the
Civil Code... The right to occupy does not cease with the sale of the property by the
landlord, but continues to exist with regard to the buyer (see Section 571 of the Civil
Code)...
The tenant's right to occupy ceases with an effective cancellation of the lease by the
landlord. From this, however, one cannot conclude that legal rules and court decisions
with respect to the protection of tenants cannot favor the tenant pursuant the standard set
by Article 14 of the Basic Law. However, Article 14 of the Basic Law only protects
existing legal positions (*). The continuation of an existing right is within the meaning
[of property in Article 14 of the Basic Law] and therefore is part of basic right
protection...
b) [The court next discusses the obligation of the legislator to shape the landlord/tenant
law in a way that balances property interests of both, landlord and tenant. It then reviews
the existing landlord/tenant law with the purpose to find out whether the balancing is in
compliance with basic right protection.] A one-sided preferential treatment or
discrimination which would not be in compliance with constitutional concepts of property
[with a social purpose] is not observable (*). The guarantee of property unfolds its
function to secure freedom in both directions. The tenant who is in compliance with his
lease is being protected against loosing his housing if [such a deprivation of housing] is
not due to permissible justifications of the landlord. Housing, as the physical center of the
free development of the personality and a free sphere of self-responsible activity, cannot
be taken away by a cancellation of a lease without strong justifications (*). The landlord
is being protected in his freedom in that he can regain the housing to use it as his own
center of life (or have relatives use it). [The decision of the landlord as to what constitutes
4
his living needs] has, as a matter of principle, to be respected and may not be substituted
with other perceptions of adequate housing or [other perceptions] about the landlord's
(or his relatives') plans of the future (*).
c) The responsible courts, in their application and interpretation [of landlord/tenant law],
must respect the limits set by the guarantee of property and must follow the balancing of
interests expressed in landlord/tenant law pursuant the constitutional basis in a way that
respects both sides' guarantees of property and avoids unproportional limitations of
property. The threshold past which the Federal Constitutional Court corrects a violation
of constitutional law is only reached if the lower courts' reasoning show mistakes in
interpretation that indicate a principally incorrect position with respect to the importance
of the guarantee of property, in particular with respect to the scope of the protected
sphere, and [if the lower courts' decisions] are of material importance in the concrete
dispute.
Therefore, the protection of property of the tenant [is being violated] by judicial holdings
that greatly underestimate the importance and scope of Article 14.1. first sentence of the
Basic Law for the right to property. Also in this respect the protection of tenants'
property rights does not structurally differ from the one of the landlord. As far as
according to regular law the justifications [of a cancellation of a lease] have to be
reviewed with respect to their seriousness and reasonableness, the tenant has the right that
a court reviews [the tenant's] challenges of the [landlord's] justification in a manner
which reflects the importance and scope of the tenant's interest [to remain in his
housing], for example [the tenant has the right that a court reviews] whether the claim of
the landlord that he needs the housing for his own use is actually being pursued by the
landlord (*), whether the claim of the landlord with respect to his own housing needs is
too large in scope, whether, accepting that the landlord's claim is not too large in scope,
the housing needs of the landlord could be satisfied without depriving the tenant of
housing, as for example would be the case when the landlord owns additional vacant
housing that could satisfy his housing needs without significant cutbacks for the landlords
(*). [Moreover, the tenant has the right that a court interprets certain mandates of welfare
law with respect to Atough cases' in a way that is appropriate in the light of the scope
and importance of the tenant's interest to remain in his housing.]
The challenged decision survives a review under the criteria outlined above. The district
court did not ignore that the plain will of the landlord to use the housing for himself is not
sufficient to overcome the contrary interest of the tenant to remain in his housing. [The
district court] explicitly noted that the desire of the landlord to use the housing for
himself must be reasonable and understandable in order [to justify a removal of the
tenant]. The reasoning [of the district court, namely] that the landlord's justification for
her desire to use the apartment herself was reasonable and understandable based on the
finding that she was severely ill and needed someone to take care of her and be physically
close to her, cannot be criticized from the perspective of constitutional law. The district
court also considered the obvious question whether the landlord's interest could also
have been met without depriving the tenant of his apartment in the light of the fact the
son of the landlord already lived physically close to his mother just on the other side of
the house. The district court found an alteration of the situation necessary because such an
5
alteration was only way to reduce the physical distance between son and mother and ease
the care for her. It is true that such the legal analysis of the situation is not [the only
possible one]. This however, is irrelevant from the perspective of constitutional law. The
threshold of a violation of the constitution is not met. The district court did not--as
outlined above--completely ignore the tenant's interests, instead, it recognized that a
tenant must be protected from cancellations of leases that are not sufficiently justified,
and it reviewed the landlord's justification in the light of the complaints of the tenant...
[The Federal Constitutional Court also reviewed exhaustively whether the district court's
decision violated Articles 2.1., 3.1., and 13.1. of the Basic Law. It concluded that neither
of the provisions was being violated.
All eight judges signed the decision.]
India
This section requires elaboration
GENERAL FEATURES OF THE STATUTES DEALING WITH LAND
REFORMS IN INDIA
'Land' being a state subject, every state has its own Land Reforms laws.
The Land Reforms (Fixation of Ceiling on Land) Acts, were enacted during 1960s to
further the Directive Principles of State Policy, provided under part four of the
Constitution of India in Art.39(b) & (c). Art 39 provides that the State should, in
particular, direct its policy towards securing that the ownership and control of the
material resources of the community are so distributed as best to subserve the common
good and that the operation of the economic system does not result in concentration of
wealth and means of production to the common detriment. To achieve this purpose the
land reforms are brought about.
Land reforms are applicable only to the agricultural lands. However there are separate
enactments to deal with urban land holdings. They also impose restrictions on holdings in
urban areas and impose ceiling.
The Acts exempt lands belonging to the central and state governments, local authorities,
universities, educational institutions, trusts for a public purpose or of an educational
nature and cooperative societies.
For the purposes of the Act a family of five members is the unit. A family of five
members shall hold no more than one standard unit of land. A standard unit varies from
state to state. In case of Madras 30 acres is the standard holding. A family with more than
five members shall be entitled to 5 additional acres per member. A joint hindu family is
6
considered a single unit. The number of acres calculation differs according to the nature
of the land, i.e wet or dry.
Within a specified period of time, after the notification issued by the government, every
person holding land is required to file a return with the authorized officer regarding the
particulars of the land held by him. The authorized officer shall prepare a statement of the
surplus land held by the person and notify the same. The concerned owners may raise
their objections regarding the extent declared as surplus. The officer shall give them a
reasonable opportunity and hear their objections. In case of any dispute, on a request, he
shall refer the matter to the Land Tribunal. The questions of title are not gone into by the
authorized officer, they are decided by the Land Tribunal on reference.
Any gift or settlement of land after the relevant date of notification is deemed to be void.
After the declaration of the surplus, the government shall commence the land acquisition
proceedings, stating that the land is required for a public purpose. The government
created a separate machinery to deal with the claims on compensation in matters of
acquisition.
The land thus acquired, is distributed to the landless poor under the various government
schemes. However, there are no provisions in the Act which provide norms for
distribution.
The land reforms Acts were challenged as being violative of the fundamental right to
acquire and hold property. The right to property was, deleted from the list of fundamental
rights by a constitutional amendment (42nd) and it is only a legal right now. The land
reforms laws were included in the ninth schedule of the Constitution and judicial review
was excluded regarding the ninth schedule.
RIGHT TO PROPERTY AND THE LEGISLATIVE AND JUDICIAL ATTITUDE
Art. 19(1) All citizens shall have the right_
(f) to acquire, hold and dispose of property....
Art 19(5) Nothing in the above clauses shall prevent the state from making any laws in
the interests of the general public .....,
Art 31 Compulsory acquisition of property - (1) No person shall be deprived of his
property save by authority of law.
(2) No property shall be compulsorily acquired or requisitioned save for a public purpose
and save by authority of a law which provides for acquisition of the property for an
amount which shall be fixed by such law; and no such law be called in question in any
curt on the ground that the amount so fixed is not adequate......,
7
Art 31A Saving of laws providing for acquisition of estates- Not withstanding any thing
contained in Art 13, no law providing for
(a) the acquisition by the state of any estate or any rights therein ....,
Shall be void on the ground that it is inconsistent with or takes away or abridges any
fundamental rights......,
(2) (iii) Aestate' means any land held or let for purposes of agriculture...,
Art31B Validation certain Acts - Without prejudice to the generality of the provisions
contained in art31A, none of the acts or regulations contained in the Ninth Schedule of
this part shall be void on the ground that the act or regulation takes away or abridges any
of the fundamental rights........
Art 31C Saving of laws giving effect to certain Directive Principles of State policy- ...,
any law giving effect to the policy of the state towards securing all or any of the
principles laid down in the directive principles , shall be deemed to be void on the ground
that it takes away the fundamental rights.....,
Art. 19(1) (f) guaranteed to the Indian citizens a right to acquire, hold and dispose of
property. Art 19 (5), however, permitted the state to impose by law reasonable restrictions
on this right in the interests of the general public or for the protection of any Scheduled
Tribe.
Generally speaking, Art. 19(1) (f) did not prove to be much of a hindrance in the way of
government implementing land reforms. Courts characterized as reasonable a very drastic
reordering of the agrarian economy showing that the Courts had themselves assimilated
and imbibed, to some extent contemporary economic philosophy.1 Many laws regulating
relationship between landlord and tenants were declared to be constitutional.
A law limiting the size of holdings in the hands of a single individual to a specified limit
was held to be valid the Supreme Court in State of Bihar v. Kameshwar Singh AIR1952
SC 252 .
The Bihar land Acquisition was challenged in this case and the Supreme Court held :
Now it is obvious that concentration of big blocks in the hands of a few is against
the principles on which the Constitution of India is based. The purpose of the
acquisition contemplated by the Act is therefore to do away with the
concentration of land in the hands of a few individuals and so distribute the the
ownership and material resources which come in the hands of the state so to
subserve the common good as best as possible.
In other words, the purpose behind the Act is to bring about a reform in the land
distribution system of Bihar for the general benefit of the community as advised.
The legislature is the best judge of what is good for the community interest. It is
not possible for the Court to say that there was no public purpose behind the Act.
1
M.P.Jain, Indian Constitutional law, N.M Tripathi,Bombay 1987, 667.
8
The purpose of the Act is in accordance with the letter and spirit of the
constituiton .
Art 31(1) laid down that no person could be deprived of his property without the authority
of law. This provision was repealed by the 44th Amendment. It now appears as Art.300
A. The difference being that it is anly a legal right and not fundamental any longer.
Art. 31(2)as it stood before its abrogation was as follows:
ANo property shall be compulsorily acquired or requisitioned except for a public purpose
and save by the authority of law which provides for acquisition and requisition of
property for an amount which shall be fixed by law........,
Before 1955: The word compensation in Art 31(2) was not qualified by any adjective like
Ajust' or Aadequate'. Nevertheless, the courts took the position that such an omission
was immaterial and the word A compensation' standing alone by itself meant just and
equitable compensation payable for the interest in the land acquired. The courts held that
it was a justiciable matter and the courts can look into the same.
From 1955 to 1971 : The government became uneasy at the judicial insistence on the
payment of full market value for the land acquired. It was felt that it would place an
onerous burden on the country's socio economic programme involving reconstruction of
property relations. Therefore the government passed the 44th amendment Act and
amended Art 31(2) with a view to make the adequacy of compensation non justiciable
.The courts were debarred from inquiring into the question of whether the compensation
provided by a law for the property being acquired by the government was adequate or not.
This amendment, however, failed to exclude the courts completely from the area of
compensation. Though under the amended Art 31(2) the principles prescribing the just
equivalent could not be questioned on the ground of inadequacy, yet if the principles were
not relevant to the value of the property acquired at the time of acquisition, then the
courts could intervene and scrutinize the principles.2 It could also intervene if the
principles were illusory.3
The effect of the change made in Art 31(2) by substitution of the word 'amount' for
'compensation' came to be considered by the Supreme Court in Keshavananda Bharathi
case.(AIR 1973 SC 1461).It was held that the 'amount ' was not the same as
'compensation' and the courts could not go into the question of adequacy. Nevertheless,
the amount could be 'illusory', 'arbitrary', or 'grossly low', which would shock the
judicial conscience. Thus though the amount need not be market value of the property
acquired, but it should have some reasonable relationship with the value of the property
acquired. On this view of the matter a limited judicial review is still possible.
2
3
Vajravelu v. Special Deputy Collector AIR 1965 SC 1017.
AIR 1969 SC 634
9
Anantha Prbhu v.District Colector : AIR 1975 Ker 117
It was held that right to use public speakers and mikes to deliver a speech was a part of
the fundamental right to speech and expression. A restriction on the use of public address
system was held to be unreasonable.
ZIMBABWE:
Property Rights
Hewlett v Minister of Finance & Another 1981 ZLR 571 S Crt: Repeal of
Victims of Terrorism (Compensation) Act. Debts owed by the state, such as
those arising from the actual awards of compensation, are ‘property’ within the
meaning of Constitution.
Applicant had been awarded an amount under the Victims of Terrorism
(Compensation) Act. Before payment the Act was repealed. Applicant alleged a
contravention of the Decleration of Rights in that the repealing Act contravened
section 16 of the Decleration which protected property from compulsory
acquisition. He argued that the right to receive compensation under the Act was
property was property within the meaning of section 16.
Held that in interpreting a constitution, the principles of interpretation are no
different from those governing the interpretation of other legislation, but
character must be given to the character and origin of the document and
interpretation must be guided by the principles of giving full recognition and effect
to those fundamental rights and freedoms set out in the constitution. It is not
permissible to take into account proposals and discussions in the preparation of
the constitution.
Debts owed by the state, such as those arising from the actual awards of
compensation, are ‘property’ within the meaning of section 16.
CW v Commissioner of Taxes 1988 (2) ZLR 27 (HC): State could not erode
compensation by taxing it. Reasonable justification in a democratic society.
Smith J:
The appellant company had acquired shares in a number of South African
companies. These shares were external securities traded on the Zimbabwe
10
Stock Exchange. Trading on the Zimbabwe Stock Exchange in external
securities was suspended and two weeks later an amendment was promulgated
to the Exchange Control Regulations allowing the Reserve Bank to acquire
compulsorily external securities. The appellant’s external shares were acquired
in this way and a sum of compensation was offered. In the same year, 1984, an
amendment was made to the Capital Gains Tax Act exempting from capital gains
tax amounts received as compensation for shares compulsorily acquired under
the Exchange Control Regulations. In 1985 a further amendment was made to
the Act, withdrawing the exemption in respect of holders of foreign securities who
had contested the adequacy of the compensation payable.
Held that there is a general presumption in interpreting statutes against
retroactivity, unless the statute so provides clearly or by necessary implication.
Although the amendment had a discriminatory affect this was not one of the
forms of discrimination prohibited by s23 of the constitution, which prohibits
discrimination on the basis of race, tribe, place of origin, political opinions, colour
or creed. Person alleging constitutionality must establish it as not reasonably
justifiable in a democratic society.
It could never have been intended that, once adequate compensation had been
paid to a person, the state could erode the compensation by taxing it. Nor could
such a provision be justified as being reasonably justifiable in a democratic
society in terms of s16(7) of the constitution, as it effectively penalizes persons
who sought to have their constitutional rights tested in the courts. The
amendment was therefore unconstitutional.
Mhora v Minister of Home Affairs 1990 (2) ZLR 236 (HC): Deprivation of
benefits, including accrued salary, pension and medical benefits, without
compensation would be an acquisition of property
Gibson J:
Applicants sought the respondents’ personal compliance with a court order
awarding the applicants various accrued salary, pension and medical benefits
and with which order the respondents had failed to compy. Held that the benefits
were property as envisaged by s16 of the constitution, and any deprivation of
these benefits without compensation would be an acquisition of property contrary
to the provisions of the section.
Chairman, Public Service Commission v Hall 1992 (2) ZLR 271 (S): The
power to fine a public officer for misconduct was not in violation of the
Constitution
11
McNally JA:
In a cross-appeal, the respondent argued that the Public Service Regulations
1986 were ultra vires the Constitution insofar as they purport to allow for a fine to
be imposed upon a public officer found guilty of misconduct. It was argued that
the imposition of a fine under these regulations was in contravention of s16(7) of
the Constitution which prohibits the compulsory aquisition of property and it does
not fall under any of the exemptions permitted, namely fining for a breach of law
or for contempt of court or parliament.
Held that the power to fine a public officer for misconduct was not in violation of
the Constitution. In terms of s75(1) (d) and (f) of the Consitution, the Public
Service Commission is specifically empowered to ‘punish’ members of the
service found guilty of misconduct, and to exercise disciplinary control over
public officers and to remove them from office
Nyambirai v National Social Security Authority & Another 1996 (1) SA 636:
Laws making provision for acquisition of property in satisfaction of tax or rate
where that law is reasonably justifiable in a democratic society. Government ,
better placed than the judiciary to appreciate what was in the public interest.
Three criteria used in test: legislative objective sufficiently important; self evident
rational connection between the objective and the measures; means used impair
rights no more than necessary.
The right not to have property compulsorily acquired is protected by s16(1) of
the Constitution. Section 16(7) of the Constitution provided that the s16(1) right is
not violated by laws making provision for acquisition of property in satisfaction of
any tax or rate where that law is reasonably justifiable in a democratic society.
The second respondent promulgated the Pensions and Other Benefits Scheme
in which all working persons were required to contribute to the scheme. Applicant
contended that his rights under s16(1) had been infringed.
Held as to the question as to whether the Scheme was in the public interest, that
because government had superior knowledge and experience of society and its
needs, and a familiarity with local conditions, it was in principle, better placed
than the judiciary to appreciate what was in the public interest. In implementing
social and economic policies a government’s assessment as to their needs was
to be respected by the Courts: they would not intrude but would allow a wide
margin of appreciation, unless convinced that the assessment was manifestly
without reasonable foundation. This was not such a case.
Held as to whether the tax was reasonably justified in a democratic society, that
an abridgment of a guaranteed right should not be arbitrary or excessive. The
12
Court would consider three criteria: (1) whether the legislative objective was
sufficiently important to justify limiting a fundamental right; (2) whether the
measures designed to meet the legislative objective were rationally connected to
it; and (3) whether the means used impaired the right or freedom no more than
was necessary to accomplish the objective.
Held that the legislative objective of social security was sufficiently important to
justify the imposition of the tax. There was a self evident rational connection
between the objective and the measures employed to meet it. The means used
impaired the right or freedom no more than was necessary to accomplish the
objective.
NAMIBIA:
Right to own property
De Roeck v Campbell & Others 1990 NR 126: Laws of execution; rights of
debtors and creditors; rights of peregrini and incolae.
Levy J:
Right to own property is a fundamental human right entrenched in art 16 of the
Constitution of Namibia. Ownership includes the right to possess one’s property,
to dispose of it and even destroy it. If anyone else lays claim to such property or
to interfere with any one of those rights, the onus is on such person to justify his
claim. But the law provides for the attachment of property at the behest of a
creditor having a judgment sounding in money. The laws of execution are
however framed so as to protect the debtor’s right subject only to the creditor’s
rights in terms of the judgment.
Right to own property is not reserved for the citizens / residents of Namibia.
Peregrini have same rights as incolae. But the property of a peregrinus can be
attached to found or confirm jurisdiction.
UNITED KINGDOM
This section requires elaboration:
13
Summary and photocopies:
Expropriation:
when permanently deprived of all appreciable economic activity: entitled to
compensation: Cottle v Coldictot (Inspector of Taxes) 1995 STC; Sheffield City Council v
Yorkshire Water Services 1991 All ER:
Local Government Powers,
transfer of property, water supply; Dhenin v Dept of Transportation 1990 TPL:
depreciation caused by use of public works, compensation, house affected by motorway.
Property rights may be infringed:
police action on premises; enforcing health or trading standards.
Warrants usually required before enter and seizure:
R v IRC, ex parte Rossminster 1980 ALL ER: warrant requirements, reasonable relief; R v
Chief Constable of Lancashire, ex parte Parker and McGrath 1993 Crim LR: search
warrant, authenticity, unlawful interference.
EUROPEAN COMMUNITY
Protocol to the Convention for the Protection of Human Rights and Fundamental
Freedoms, 213 U.N.T.S. 262, entered into force May 18, 1954.
ARTICLE 1
Every natural or legal person is entitled to the peaceful enjoyment of his
possessions. No one shall be deprived of his possessions except in the public
interest and subject to the conditions provided for by law and by the general
principles of international law.
The preceding provisions shall not, however, in any way impair the right of a
State to enforce such laws as it deems necessary to control the use of property in
accordance with the general interest or to secure the payment of taxes or other
contributions or penalties.
Property Rights
Papamichlopoulos v Greece EHRR 1993:
Possessions and property: deprivation; lawfulness and purpose of interference.
14
Wiesinger v Austria 16 EHRR 258 1991:
Civil proceedings- reasonable time; peaceful enjoyment of possessions- jurisdiction of the
court; exhaustion of domestic remedies. Interference with property rights: provisional
transfer not deprivation; balance between collective and individual interest; whether
measure disproportionate; temporary interference justified; margin of interference;
duration of interference. Discrimination: interference with property rights. Just
satisfaction: pecuniary damage, non-pecuniary damage, costs and expences.
Scotts of Greenock Ltd and Lithgows Ltd v United Kingodom 12 EHRR 97:
Nationalisation, disproportionate interference, method of valuation, amount of
compensation, discriminatory application, public interest, substantial resale value, right to
re-purchase the propery and business, access to court, reasonable period taken for
arbitration, effective remedy.
Ciba SA and Others v Ufficicio Centrale Brevetti 1979 European Commercial
Cases (ECC) 67
Corte Costituzionale (Italian Constitutional Court): Patents: promotion of research. Equal
protection. Medicines: refusal to allow patent protection to new medicines violates Art 9
of Const (encouragement of scientific research) and Art 3 (equal protection) in that it
discourages research and places at an unequal advantage those who do the research
against those who merely use the research. Patents: property  peculiarity of immaterial
rights- the fact that they are capable of simultaneous multiple uses makes it inadvisable to
insert them mechanically into the schema of private and public property.
The above European cases require elaboration
KATIKARIDIS AND OTHERS v. GREECE (72/1995/578/664) 15 November
1996: Impossibility of obtaining full compensation for expropriation of part of
properties fronting a road because of irrebuttable presumption that the benefit
derived from road improvements amounted to sufficient compensation.
Expropriation pursued lawful end in the public interest
Greece - impossibility of obtaining full compensation for expropriation of part of
properties fronting a road because of irrebuttable presumption that the benefit derived
from road improvements amounted to sufficient compensation (section 1 (3) of Law no.
653/1977)
III. Article 1 of Protocol No. 1
Applicants deprived of their property - expropriation pursued lawful end in the public
interest, namely improving a major road.
15
Statutory presumption which Court of Cassation had held to be irrebuttable meant that
compensation was reduced by an amount equal to the value of an area fifteen metres wide
- owners not allowed to argue that in reality the works had caused them to sustain varying
degrees of loss.
System too inflexible - manifestly without reasonable foundation - upset fair balance
between protection of right to property and requirements of the general interest individual and excessive burden on applicants which could have been rendered legitimate
only if they had had possibility of obtaining payment of compensation assessed by the
domestic courts.
Conclusion: violation (unanimously).
A. Background
6. On 28 July 1981, by means of a joint decision of the Ministers of Finance and Public
Works taken under Law no. 653/1977 "on the obligations of adjoining owners where
major roads are built", the State expropriated part of each of the properties belonging to
the applicants for the purpose of constructing a flyover on the road between Salonika and
Langadas.
Law no. 653/1977 creates a presumption that the owners of properties on major roads
benefit when such roads are widened and provides that they must accordingly contribute
to the cost of expropriation if they are expropriated (see paragraph 29 below).
The properties, which bordered the road, were used for business purposes.
The first two applicants, Mr Savvas Katikaridis and Mr Nicolaos Katikaridis, sold car
tyres from their premises, of which they lost 174.38 sq. m. The third applicant, Mr
Tormanidis, who was in the fuel business, owned a service station, of which he lost 68.68
sq. m. The fourth applicant, Agrotikes Syneteristikes Ekdosis, AE, a publishing and
printing firm, had 347.36 sq. m expropriated.
PROCEEDINGS BEFORE THE COMMISSION
31. The applicants applied to the Commission on 24 October 1991. They alleged breaches
of Article 6 § 1 of the Convention and Article 1 of Protocol No. 1.
32. On 31 August 1994 the Commission declared the application (no. 19385/92)
admissible as to the applicants' complaints concerning the length of the proceedings and
the interference with their right to the peaceful enjoyment of their possessions; the
remainder of the application it declared inadmissible. In its report of 28 June 1995
(Article 31), it expressed the unanimous opinion that there had been a breach of Article 6
§ 1 of the Convention and Article 1 of Protocol No. 1.
AS TO THE LAW
III. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 1
44. The applicants alleged that the presumption created by section 1 (3) of Law no.
653/1977 and the fact that the Court of Cassation had held that it was an irrebuttable one
had prevented them from obtaining in the courts the compensation to which they were
entitled by virtue of a final court decision following the expropriation of part of their
properties. They relied on Article 1 of Protocol No. 1, which provides:
16
"Every natural or legal person is entitled to the peaceful enjoyment of his
possessions. No one shall be deprived of his possessions except in the public
interest and subject to the conditions provided for by law and by the general
principles of international law.
The preceding provisions shall not, however, in any way impair the right of a
State to enforce such laws as it deems necessary to control the use of property in
accordance with the general interest or to secure the payment of taxes or other
contributions or penalties."
45. It was not contested that the applicants had been deprived of their property in
accordance with the provisions of Legislative Decree no. 797/1971 and Law no.
653/1977, so that improvements could be made to a major road, and that the
expropriation thus pursued a lawful aim in the public interest.
46. The applicants objected to the irrebuttable presumption that adjoining owners derived
a benefit from improvements to major roads and the basis for it - everyday experience indicated by the Court of Cassation in its judgment of 13 June 1989 (see paragraph 18
above). They submitted that in certain decisions of the Salonika Court of Appeal and the
Court of Cassation, and in the dissenting opinions of several of the Court of Cassation
judges, it had been questioned whether the presumption was irrebuttable where, as here, it
was evident that adjoining owners not only did not derive any benefit from the
expropriation but, on the contrary, sustained a loss in the value of the remaining part of
their property. They complained that the burden of expropriations for the purpose of
making improvements to major roads, which benefited society as a whole, fell mainly on
the shoulders of the adjoining owners. The amount of benefit derived by those owners
varied from case to case and should not have been predetermined irrebuttably in a
provision of general application.
47. In the Government's submission, the presumption did not of itself warrant the
conclusion that there was a real or apparent disproportion between the general interest
pursued and the expropriated owners' alleged loss. Even supposing that the wording of
section 1 of Law no. 653/1977 at first sight suggested such a disproportion, it would be
reduced to a minimum as the section limited adjoining owners' contributions to the cost
of expropriation to an area fifteen metres wide on either side of the road and provided that
that obligation could not exceed half the surface area of the property concerned (see
paragraph 29 above).
48. In the Commission's opinion, the fact that, owing to the application of the
presumption which had been held to be irrebuttable, it was impossible for the applicants
to obtain the compensation declared due to them amounted to a violation of Article 1 of
Protocol No. 1.
49. The Court recognises that when compensation due to the owners of properties
expropriated for roadworks to be carried out is being assessed, it is legitimate to take into
account the benefit derived from the works by adjoining owners.
It observes, however, that in the system applied in this instance the compensation is in
every case reduced by an amount equal to the value of an area fifteen metres wide,
without the owners concerned being allowed to argue that in reality the effect of the
17
works concerned either has been of no benefit - or less benefit - to them or has caused
them to sustain varying degrees of loss.
This system, which is too inflexible, takes no account of the diversity of situations,
ignoring as it does the differences due in particular to the nature of the works and the
layout of the site. It is "manifestly without reasonable foundation" (see, mutatis mutandis,
the James and Others v. the United Kingdom judgment of 21 February 1986, Series A no.
98, p. 32, § 46, and the Mellacher and Others v. Austria judgment of 19 December 1989,
Series A no. 169, p. 26, § 45). In the case of a large number of owners, it necessarily
upsets the fair balance between the protection of the right to property and the
requirements of the general interest.
50. In the instant case the applicants had strong arguments to put forward in an attempt to
show that the construction of a flyover near their premises, instead of increasing the value
of the properties they retained, reduced their value by depriving them of direct access to
the major road, which had by then been raised six metres. Moreover, the Salonika Court
of Appeal had found that the applicants had sustained loss as a consequence of the works
and held that the State was to pay commensurate compensation (see paragraph 16 above).
51. The applicants thus had to bear an individual and excessive burden which could have
been rendered legitimate only if they had had the possibility of obtaining payment of the
compensation in question.
There has therefore been a violation of Article 1 of Protocol No. 1.
PRÖTSCH v. AUSTRIA (67/1995/573/659) 15 November 1996: Interference
(provisional transfer of land) considered -- need for a proper balance between
demands of community's general interest and requirements of protecting
fundamental rights of individual - - temporary disadvantage may be justified in
the general interest if not disproportionate to aim pursued. -- Aim of
consolidation: improve infrastructure and pattern of agricultural holdings.
Article 1 of Protocol No. 1
Interference (provisional transfer of land) considered under first sentence of first
paragraph of Article 1 - need for a proper balance between demands of community's
general interest and requirements of protecting fundamental rights of individual temporary disadvantage may be justified in the general interest if not disproportionate to
aim pursued.
Aim of consolidation: improve infrastructure and pattern of agricultural holdings - not
disputed by applicants who complained of inadequacy and length of transfer-of-land
proceedings.
(a) Inadequacy - Upper Austria Land Reform Board twice held that parcels allotted to
applicants were of approximately same value as old ones and agricultural performances at
least as good;
(b) Length - final consolidation scheme came into force six years after transfer of land period not unreasonable in itself having regard to aim of proceedings.
Domestic courts examined applicants' damage allegations - found that no damage had
been suffered by applicants - singled out some net advantages.
18
Conclusion: no violation (unanimously).
The applicants are Austrian citizens and own a farm at Niederthalheim, Upper Austria.
PROCEEDINGS BEFORE THE COMMISSION
34. Mr and Mrs Prötsch applied to the Commission on 12 June 1989. They relied on
Article 1 of Protocol No. 1, complaining of the impossibility of obtaining compensation
in respect of temporary disadvantages which they allegedly suffered in connection with
agricultural land consolidation proceedings. They further complained, under Article 6 of
the Convention, that the Land Reform Board lacked impartiality.
35. On 31 August 1994 the Commission declared the application (no. 15508/89)
admissible as far as the complaint under Article 1 of Protocol No. 1 was concerned. In its
report of 5 April 1995 (Article 31) it expressed the opinion, by nine votes to two, that
there had been a violation of that provision
FINAL SUBMISSIONS TO THE COURT
36. At the hearing, the applicants requested the Court to hold that in the present case
Austria had acted in violation of Article 1 of Protocol No. 1.
The Government, for their part, asked the Court to conclude that the interferences with
the applicants' property rights could not be regarded as unreasonable in the light of the
requirements of the general interest on which consolidation proceedings are based and
that, therefore, there were no grounds to assume that a breach of Article 1 of Protocol No.
1 had taken place.
AS TO THE LAW
ALLEGED BREACH OF ARTICLE 1 OF PROTOCOL NO. 1
37. Mr and Mrs Prötsch complained that their inability to obtain financial compensation
for the loss of yield from the compensatory parcels provisionally allocated to them was in
violation of Article 1 of Protocol No. 1, which reads as follows:
"Every natural or legal person is entitled to the peaceful enjoyment of his
possessions. No one shall be deprived of his possessions except in the public
interest and subject to the conditions provided for by law and by the general
principles of international law.
The preceding provisions shall not, however, in any way impair the right of a
State to enforce such laws as it deems necessary to control the use of property in
accordance with the general interest or to secure the payment of taxes or other
contributions or penalties."
The Commission agreed with the applicants' claim whereas the Government, whilst
accepting that there had been an interference with the applicants' right of property,
contested the claim.
38. The applicants alleged that, as a result of the provisional transfer arrangements (see
paragraph 7 above), they had been allotted land of less value than that which they had
previously held and that, in consequence, they had suffered a yearly loss in the region of
ATS 30,000 for a period of seven years, their total loss therefore amounting to ATS
210,000. They emphasised that this damage was only imputable to the lesser yield of the
parcels provisionally allocated to them.
19
The applicants further submitted that, at the material time, the legislation did not provide
for financial compensation in respect of damage suffered . Although legislative changes
have now been introduced , these only came into force in January 1994. Accordingly, as
far as the applicants' rights for financial compensation were concerned, the situation was
identical to that obtaining in the cases of Erkner and Hofauer and Poiss previously cited,
where the Court had found a violation of Article 1 of Protocol No. 1.
39. In the Commission's view, the applicants' case differed very little from the other land
consolidation cases mentioned in the preceding paragraph. Although in the present case
the time that elapsed between the provisional transfer of land and the coming into force of
the consolidation scheme was considerably shorter, the Commission considered that a
period of six years, in a situation where no action for compensation was open to the
applicants, still imposed on them an individual and excessive burden which was contrary
to the Convention.
At the hearing, the Delegate of the Commission submitted that the present case was
distinguishable from that of Wiesinger v. Austria (judgment of 30 October 1991, Series A
no. 213), in that, unlike Mr and Mrs Prötsch, the applicants in the Wiesinger case had
voluntarily joined the consolidation proceedings and had not opposed the provisional
transfer (p. 25, § 70).
40. The Government denied that the applicants ever suffered any material damage as a
result of the provisional transfer. Therefore, the question whether the applicants were able
to bring an action for compensation was wholly irrelevant in this case. They further
contended that, in the light of the requirements of the general interest on which
consolidation proceedings are based, a period of six years cannot be considered
unreasonable, particularly when regard is had to the highly complex questions that the
Austrian authorities had to examine.
41. In interpreting Article 1 of Protocol No. 1 to the Convention, the Court refers to its
long-established case-law (see, among many other authorities, the Pressos Compania
Naviera S.A. and Others v. Belgium judgment of 20 November 1995, Series A no. 332,
pp. 21-22, § 33).
42. The transfer of land - whose lawfulness the applicants contest - could not amount, by
the very essence of its provisional nature, to a "deprivation of possessions", within the
meaning of the second sentence of the first paragraph of Article 1. Again, this provisional
transfer was essentially designed not to restrict or control the "use" of the land (second
paragraph of Article 1), but to achieve an early restructuring of the consolidation area
with a view to improved, rational farming by the "provisional owners" (see paragraph 25
above). The transfer must therefore be considered under the first sentence of the first
paragraph of Article 1 (see, on this point, the above-mentioned Wiesinger judgment, p.
26, § 72).
43. For the purposes of this provision, the Court must inquire whether a proper balance
has been struck between the demands of the community's general interest and the
requirements of protecting the fundamental rights of the individual.
In this respect a temporary disadvantage sustained by an individual by reason of a
measure taken in accordance with domestic law, may in principle be justified in the
20
general interest, if it is not disproportionate to the aim sought to be achieved by that
measure (ibid., p. 26, § 73).
44. According to the relevant legislation (see paragraph 21 above), the purpose of
consolidation is to improve the infrastructure and the pattern of agricultural holdings, by
redistributing the land and providing communal facilities. It serves the interests of both
the landowners concerned and the community as a whole by increasing the profitability of
holdings and rationalising cultivation (see the above-mentioned Wiesinger judgment, p.
26, § 74). This has not been challenged by the applicants, who have concentrated their
claim on the inadequate way in which the provisional transfer process was carried out and
on its allegedly unreasonable length.
45. As to the alleged inadequacy of those procedures which - in the applicants'
submission - resulted in a decreased productivity of the compensatory parcels allocated to
them and ensuing financial damage, the Court observes that it was open to Mr and Mrs
Prötsch to contest the lawfulness of that allocation once the consolidation scheme was
published. Indeed, they used this possibility and filed an appeal in October 1983 against
the original consolidation scheme. The thrust of their complaints was rejected by the
Upper Austria Board on the ground, inter alia, that the parcels allotted to the applicants
were of approximately the same value as their former holdings and that, on the whole, the
agricultural performances under the new situation were at least as good as under the old
one. It is to be noted that the Board only accepted that the configuration of a relatively
small plot (2.2 ha) should be re-examined by the District Authority with a view to making
it more functional (see paragraph 9 above).
In January 1986, the applicants filed a fresh appeal against the amended consolidation
scheme. The Upper Austria Board dismissed it by holding, inter alia, that the number of
plots in the applicants' possession had been reduced from seventeen to nine, while the
difference in value between the new and the old land did not even attain one percent. It
further held that, all in all, the consolidation measures had led to an increase in
productivity which compensated for certain small disadvantages (see paragraph 14
above).
46. Concerning the length of the consolidation proceedings, the Court notes that the facts
at issue are clearly distinguishable from those in the cases of Erkner, Hofauer and Poiss
(cited above at paragraph 38). Whereas in these cases the consolidation scheme had not
yet been finally adopted at the time of the Court's ruling - the provisional transfer of
parcels having lasted for an extensive period of time -, in the present case a first
consolidation scheme was published only three years after the provisional transfer was
effected (see paragraph 8 above). Following an appeal by Mr and Mrs Prötsch, a final
scheme - including some improvement in respect of the applicants - came into force three
years later (see paragraph 13 above). The status of provisional transfer was therefore
maintained for a total of six years, well below the periods endured by the applicants in the
above-mentioned cases (between sixteen and twenty-four years). In these circumstances,
having regard to the statutory aim of the provisional transfer, a period of six years cannot
be considered, in itself, to be unreasonably long.
47. Furthermore, the Court notes that the domestic authorities were able to examine the
applicants' allegations of damage resulting from the provisional allocation of land which
21
essentially corresponded to the situation arising from the consolidation scheme (see
paragraph 8 above). Their conclusion was invariably that the applicants had suffered no
damage as a result of the consolidation measures (see paragraphs 9 and 11 above). On the
contrary, they singled out some clear advantages, such as the substantial reduction in the
number of plots exploited by the applicants.
48. Having regard to all the circumstances mentioned above, the Court considers that the
interference with the applicants' right of property cannot be held to be disproportionate to
the demands of the general interest involved in the consolidation proceedings.
Accordingly, no violation of Article 1 of Protocol No. 1 has been established.
GUILLEMIN v. FRANCE (105/1995/611/699) 21 February 1997: length of
proceedings to challenge expropriation and to secure compensation,
France - length of proceedings to challenge expropriation and to secure compensation,
and expropriating town council's failure to carry out judicial decisions setting aside
expropriation measures
I. Article 6 § 1 of the Convention
A. Period to be taken into consideration
Starting-point: lodging of application to set aside acts prior to expropriation.
End: compensation proceedings still pending.
Total: at time of adoption of judgment more than fourteen years.
B. Reasonableness of length of proceedings
Expropriation proceedings relatively complex, coming under jurisdiction of two sets of
courts, administrative and ordinary - furthermore, as in present case, an administrative
court might have to rule on lawfulness of initial stage of proceedings at same time as an
ordinary court had to deal with consequences of expropriation order whose lawfulness
had been challenged in the other court - such a situation might give rise to conflicting
decisions.
In addition to delays due to organisational difficulties, proceedings had lasted nearly three
years in Versailles Administrative Court and then three years and nearly three months in
Conseil d'Etat - compensation proceedings still pending.
Conclusion: violation (unanimously).
II. Article 1 of Protocol No. 1
B. Merits of the complaint
Common ground that applicant had been deprived of possessions within meaning of
second sentence of Article 1 of Protocol No. 1 and that expropriation of property had not
been carried out in manner laid down in domestic law.
Applicant permanently deprived of chance of regaining possession of her land - her only
course had been to seek compensation.
Compensation for loss sustained could only constitute adequate reparation where it also
took into account damage arising from length of deprivation - it had moreover to be paid
within a reasonable time - compensation had not to date begun to be paid.
22
Potentially large sum that might be awarded at end of pending proceedings did not offset
previously noted failure to pay compensation and could not be decisive in view of length
of all the proceedings already instituted by applicant.
Conclusion: violation (unanimously).
AKKUS v. TURKEY (60/1996/679/869) 9 July 1997: depreciation through
inflation of additional compensation for expropriation caused by authorities' delay
in payment -- "entitlement to the peaceful enjoyment of possessions"
Turkey - depreciation through inflation of additional compensation for expropriation
caused by authorities' delay in payment
I. Government's preliminary objections
A. Non-compliance with six-month time-limit
Complaint was concerned solely with national authorities' delay in paying additional
compensation and damage sustained by applicant as a result - applicant could not have
made complaint until some time had elapsed after final judgment of Court of Cassation.
Conclusion: objection dismissed (eight votes to one).
II. Article 1 of Protocol No. 1
Situation of which applicant complained concerned her "entitle[ment] to the peaceful
enjoyment of [her] possessions" - Court had to examine terms and conditions on which
compensation was payable under domestic legislation and manner in which they had been
applied in applicant's case.
Additional compensation plus interest at rate of 30% per annum was paid to applicant
seventeen months after Court of Cassation's judgment at a time when inflation rates in
Turkey had reached 70% per annum.
That difference - due solely to delay on part of authorities - between value of applicant's
compensation as finally determined by Court of Cassation and its value when actually
paid had caused applicant to sustain separate loss in addition to loss deriving from
expropriation of her land.
By deferring payment of compensation for seventeen months, national authorities had
rendered the compensation inadequate.
Conclusion: violation (seven votes to two).
III. Article 50 of the Convention
A. Pecuniary damage
Applicant entitled to reimbursement of difference between amount actually paid and
depreciation of sum due to her over a period of at least fourteen months.
B. Non pecuniary damage
Compensation awarded.
C. Costs and expenses
Awarded on an equitable basis.
Conclusion: respondent State to pay specified sums to applicant (seven votes to two).
23
THE NATIONAL & PROVINCIAL BUILDING SOCIETY, THE LEEDS
PERMANENT BUILDING SOCIETY AND THE YORKSHIRE BUILDING
SOCIETY v. THE UNITED KINGDOM (117/1996/736/933-935) 23 October1997:
Applicants’ legal claims to restitution of monies paid under invalidated tax
provisions extinguished under the effects of retrospective legislation -- Whether
there was an unlawful expropriation of applicants’ assets – Meaning of
‘possessions’ --interference -- whether interference was justified.
United Kingdom – applicants’ legal claims to restitution of monies paid under invalidated
tax provisions extinguished under the effects of retrospective legislation (section 53 of
Finance Act 1991 and section 64 of Finance (No.2) Act 1992)
I. ARTICLE 1 OF PROTOCOL NO. 1
1. Whether there was an unlawful expropriation of applicants’ assets
Interest paid in gap period would inevitably have been taxed had voluntary arrangements
between building societies and Inland Revenue continued to apply - it was held in
applicants’ reserves waiting to be brought into account – in absence of transitional
Regulations applicants would have obtained a windfall in changeover to new tax regime –
no support in domestic litigation for argument that interest subjected to double imposition
– interest never in fact taxed - Parliament clearly intended interest to be taxed – cannot be
maintained that it was misled in this respect – no unlawful expropriation of assets or
double imposition of interest through operation of 1986 Regulations.
2. Whether there were "possessions" within meaning of Article 1
Court expresses no concluded view on whether any of applicants’ claims could properly
be considered "possessions" – Leeds and National & Provincial had not secured a final
and enforceable judgment in their favour when they initiated first set of restitution
proceedings notwithstanding favourable outcome of Woolwich 1 litigation – judicial
review proceedings and second set of restitution proceedings launched by all three
applicants cannot be said to be sufficiently established – in particular, applicants cannot
maintain that they had a legitimate expectation that Government would not seek
Parliament’s consent to adopt retrospective legislation to validate impugned Treasury
Orders.
Nevertheless, Court prepared to proceed on assumption that applicants’ claims amounted
to "possessions" and treat Article 1 as applicable given links between applicants’
arguments on this issue and substance of their claims to have been unjustifiably deprived
of their "possessions".
3. Whether there was an interference
24
Not disputed – Court will examine whether interference justified on working
assumption that applicants’ claims amounted to "possessions".
4. Whether the interference was justified
Reiteration of Court’s case-law on approach to interpretation of Article 1 – Court will
apply rule in second paragraph of Article 1 to facts to determine whether impugned
measures were a control of use of property in general interest to secure payment of taxes
– most natural approach in circumstances.
Obvious public interest considerations at stake justifying Parliament’s adoption of section
53 of 1991 Act and section 64 of 1992 Act – section 53 sought to reassert Parliament’s
original intention to tax interest paid in gap period – that intention thwarted by ruling in
Woolwich 1 that 1986 Regulations void on technical grounds – Leeds and National &
Provincial must be reasonably considered to have appreciated Parliament would adopt
retrospective legislation to remedy technical defects in 1986 Regulations – section 64
designed to safeguard substantial sums of revenue placed at risk by applicants’ challenge
to validity of Treasury Orders – cannot be maintained in circumstances that sections 53
and 64 upset balance between protection of applicants’ rights to restitution and public
interest in securing payment of taxes due.
Conclusion: no violation (unanimous).
II. ARTICLE 1 OF PROTOCOL NO 1 IN CONJUNCTION WITH ARTICLE 14 OF
THE CONVENTION
Applicants not in relevantly similar situation to that of Woolwich – latter alone bore costs
and risks of litigation and had secured victories in House of Lords and Court of Appeal
before Leeds and National & Provincial had issued writs to launch their restitution
proceedings – even if applicants could be so considered there was reasonable and
objective justification for excluding Woolwich from scope of section 53 – understandable
that Parliament did not wish to interfere with House of Lords ruling in Woolwich 1 –
cannot be maintained that section 64 discriminated between applicants and Woolwich –
measure was of general application.
Conclusion: no violation (8 votes to 1).
III. ARTICLE 6 § 1 OF THE CONVENTION
A. Applicability
Applicable – both sets of restitution proceedings were private law actions irrespective of
fiscal dimension – judicial review proceedings clearly related to outcome of second set of
restitution proceedings and therefore decisive of private rights.
25
B. Compliance
Effects of sections 53 and 64 were to render applicants’ legal actions unwinnable –
whether this result constituted an interference with applicants’ right of access to court
must be determined in light of all circumstances of case – Court must in particular subject
to careful scrutiny justifications adduced by authorities in view of retrospective nature of
impugned measures.
Applicants clearly understood that Parliament intended to tax interest paid in gap period
and can reasonably be considered to have anticipated that Treasury would react as it did
to remedy technical defects in 1986 Regulations following Woolwich 1 ruling – Leeds
and National & Provincial in effect tried to pre-empt adoption of remedial legislation by
issuing writs in restitution immediately before official announcement that Parliament
would be asked to approve retrospective measures – section 53 not in fact specifically
targeted at Leeds’ and National & Provincial’s restitution actions even if its effect was to
stifle these actions – obvious public interest considerations justifying adoption of section
53 with retrospective effect having regard to Parliament’s need and resolve to reassert its
original intention.
Furthermore, compelling public interest reasons for rendering Treasury Orders immune
from legal challenge mounted by all applicants in taking judicial review proceedings and
contingent restitution proceedings – these proceedings were in effect an indirect assault
on Parliament's original intention to tax interest paid in gap period – even if section 64
adopted by Parliament in knowledge of initiation by applicants of judicial review
proceedings, applicants themselves must be considered to have appreciated that
Parliament would intervene as it did.
Conclusion: no violation (unanimous).
IV. ARTICLE 6 § 1 OF THE CONVENTION IN CONJUNCTION WITH ARTICLE 14
Court’s reasons supporting its earlier conclusion of no violation of Article No. 1 in
conjunction with Article 14 equally valid for a finding of no violation under this head.
Conclusion: no violation (8 votes to 1).
LAND POLICY IN CANADA
RIGHTS OF THE ABORIGINAL PEOPLES OF CANADA
35. (1) The existing aboriginal and treaty rights of the aboriginal peoples of Canada are
hereby recognized and affirmed.
26
(2) In this Act, "aboriginal peoples of Canada" includes the Indian, Inuit, and Metis
peoples of Canada.
(3) For greater certainty, in subsection (1) "treaty rights" includes rights that now exist by
way of land claims agreements or may be so acquired.
(4) Notwithstanding any other provision of this Act, the aboriginal and treaty rights
referred to in subsection (1) are guaranteed equally to male and female
persons.(17)
35.1 The government of Canada and the provincial governments are committed to the
principal that, before any amendment is made to Class 24 of section 91 of
the "Constitution Act, 1867", to section 25 of this Act or to this Part,
(a) a constitutional conference that includes in its agenda an item relating to the
proposed amendment, composed of the Prime Minister of Canada and
the first ministers of the provinces, will be convened by the Prime Minister of Canada;
and
(b) the Prime Minister of Canada will invite representatives of the aboriginal peoples
of Canada to participate in the discussions on that item.(18)
Torgeson, 'Indians Against Immigrants', 14 Am. Indian L.Rev. 52, *62.
In the Royal Proclamation of 1763, Great Britain sought to avoid contact with Indians
and created a huge Indian reserve. The inhabitants were assured sole occupancy and
proprietary rights. In 1830 the policy of assimilation was officially adopted. However by
the 1840s the policy had switched back to protecting Indian reserve lands from
enchroachment. In 1860, seven years before the formation of the Confederation, Britain
transferred control of Indian affairs to the province of Canada. Indians played no role in
drafting the British North America Act of 1867, which assigned legislative authority with
respect to Indians and land reserved for Indians to the federal government. The Gradual
Enfranchisement of Indians and the Better Management of Indian Affairs Act of 1869
provided the Governor with powers of removal of Chiefs. The Canadian government
continued the practice of signing treaties with Indian tribes and between 1871 and 1877,
seven major land cessions secured for the government the central and southern portions of
the Canadain west. These treaties were entered into pursuant to Canada's recognition of
the existence of Indian title. The final treaty was signed in 1921. Much of Canada remains
as non-treaty areas. Until 1969 Indian claims to land were not recognised by the
government. In 1973 it recognised aboriginal title when it indicated its commitment to
negotiating outstanding claims based on aboriginal title. The 1969 Statement of the
Government of Canada on Indian Policy ('White Paper') which was a proposal for the
assimilation of Indians into the dominant culture, met with almost unanimous opposition
27
and was never implemented. In more recent years there has been increased sensitivity to
native affairs and a greater receptivity to title claims. Special recognition of Indians is
made in the new constitution.
See also: Johnson, 'Fragile Gains', 66 Wash. L. Rev. 643, *707; Mackiem, Distributing
Sovereignty, 45 Stan. L. Rev. 1311, *1322
Opetchesaht Indian Band v. Canada [1997] 2 S.C.R. 119: Indians -- Reserves
-- Permits to use Indian reserve lands -- Right-of-way -- Validity of permit
granting public utility right-of-way for electric power transmission lines across
Indian reserve -- Right-of-way granted for such period of time as required for
purpose of transmission line -- Nature and duration of rights granted under
permit -- Whether rights granted within scope of Indian Act -- Whether permit
valid -- Indian Act,
Present: Lamer C.J. and La Forest, L'Heureux-Dubé, Sopinka, Gonthier, Cory,
McLachlin, Iacobucci and Major JJ.
ON APPEAL FROM THE COURT OF APPEAL FOR BRITISH COLUMBIA
Indians -- Reserves -- Permits to use Indian reserve lands -- Right-of-way -- Validity of
permit granting public utility right-of-way for electric power transmission lines across
Indian reserve -- Right-of-way granted for such period of time as required for purpose of
transmission line -- Nature and duration of rights granted under permit -- Whether rights
granted within scope of s. 28(2) of Indian Act -- Whether permit valid -- Indian Act,
R.S.C. 1952, c. 149, ss. 28(2), 37.
In 1959, the Crown, with the consent of the Opetchesaht band council, granted Hydro a
right-of-way for an electric power transmission line across the band's reserve "for such
period of time as the . . . right-of-way is required for the purpose of" a transmission line.
The permit issued to Hydro, under s. 28(2) of the Indian Act, gave Hydro "the right to
construct, operate and maintain an electric power transmission line", and the exclusive
right to occupy the portions of the surface of the reserve where poles were erected, and
that part of the air space where the wires were strung. The band retained the right to use
and occupy the balance of the "right-of-way" area subject to specified restrictions. In
1992, the band applied to the Supreme Court of British Columbia under Rule 18A of the
B.C. Rules of Court for a declaration that s. 28(2) did not authorize the grant of a right-ofway for electric power transmission lines over the reserve for an indefinite period of time.
That section provides that "The Minister may by permit in writing authorize any person
for a period not exceeding one year, or with the consent of the council of the band for any
longer period, to occupy or use a reserve or to reside or otherwise exercise rights on a
reserve." The court allowed the application but the Court of Appeal set aside the
judgment, concluding that s. 28(2) allowed grants of interests for periods having no
predetermined termination date.
Held (Cory and McLachlin JJ. dissenting): The appeal should be dismissed.
28
Per Lamer C.J. and La Forest, L'Heureux-Dubé, Sopinka, Gonthier, Iacobucci and Major
JJ.: The permit granted to Hydro under s. 28(2) of the Indian Act is valid. The interests
conveyed by the permit are analogous to an easement over the band's reserve lands,
subject to termination when there is no longer a requirement for the power transmission
right-of-way. Hydro's rights in the land are not exclusive. The band shares use of the
right-of-way but they cannot erect buildings on it or interfere with Hydro's easement.
While the statutory easement was granted for an indeterminate period, this is a period
whose end is readily ascertainable. The easement will terminate when it is no longer
required for a transmission line. Since the word "required" is used in the permit, the
expiry of the permit is not solely dependant on Hydro's will. Whether the line is required
is a justiciable issue.
In view of the overall context of s. 28(2), a period within the meaning of that section can
be measured either by dates or by events. The end point of a permit thus need not be
defined in terms of a specific calendar date as long as it is ascertainable and does not
constitute a grant in perpetuity. Here, the end point of the permit arises when the
easement is no longer required for power transmission. Because the duration of the
easement is a bounded and ascertainable event, that duration is a period.
As a general rule under s. 37 of the Indian Act, surrenders are required not only when the
Indian band is releasing all its interest in the reserve forever, but also whenever any
interest is given up for any duration of time. Section 37 must be read subject to other
provisions in the Indian Act relating to land, however, including s. 28. Not only do these
provisions demonstrate that there is a certain overlap between them and s. 37, but they
also overlap each other. The proper question in this case is thus not whether the permit
could have been granted under s. 37, but rather whether it was properly granted under s.
28(2). While s. 28(2) cannot apply any time a portion of the Indian interest in any portion
of reserve land is permanently disposed of, Hydro was accorded limited rights of
occupation and use for an indeterminate but determinable and ascertainable period of
time. There was no permanent disposition of any Indian interest. Furthermore, the band
and Hydro were obligated to share the rights of use and occupation of the land, with the
limited exceptions of the area of ground giving support to the poles and the air space
occupied by the poles. Consequently, the surrender requirement of s. 37 does not apply to
the present permit and more importantly, no rights exceeding those authorized by s. 28(2)
were granted. The indeterminate easement granted on the face of this permit is a
disposition of a limited interest in land that does not last forever. The grant of limited
indeterminate rights in reserve land is permissible under s. 28(2) as a question of law.
It is important that the band's interest be protected but the autonomy of the band in
decision making affecting its land must also be promoted and respected. Depending on
the nature of the rights granted, different levels of autonomy and protection are accorded
by ss. 37 and 28(2). Section 37 applies where significant rights are being transferred and
demonstrates a high degree of protection, in that the approval of the Governor in Council
and the vote of all of the members of the band are required. Under s. 28(2), lesser
dispositions are contemplated and the interest transferred must be temporary. The permit
in this case did not violate the balance between autonomy and protection struck by the
Indian Act. This is not a case where surrender was required. The band council gave its
29
consent to the permit following protracted negotiations. No claim of unfairness or an
uneven bargain in this proceeding for summary judgment was advanced by the band.
Per Cory and McLachlin JJ. (dissenting): Section 28(2) of the Indian Act cannot be used
to convey a right-of-way on reserve land for "such period of time as [it] is required for the
purpose of an electric power transmission line". The easement or right-of-way was
granted for an indeterminate period and has the potential to continue in perpetuity. An
interest in a band reserve land which possesses the potential to continue in perpetuity can
only be removed from a band by surrender and alienation with the consent of the entire
band membership under s. 37 of the Indian Act or by the formal process of expropriation
under s. 35 of the Act.
A court should only be satisfied with the plain meaning of a statute where that meaning is
clear and consistent with a purposive reading of the statute as a whole. In interpreting
statutes relating to Indians, ambiguities and "doubtful expressions" should be resolved in
favour of the Indians. This principle applies equally to cases in which third parties are
involved. The phrase "any longer period" in s. 28(2) is ambiguous. Its meaning depends
on its context. To resolve this ambiguity, the broader context within which s. 28(2) was
enacted, a context which includes the history of the Indian Act, the principles it
incorporates, the policy goals it was enacted to achieve, and its function in the overall
scheme of the Act, must be considered.
A contextual interpretation of s. 28(2) indicates that the phrase "any longer period" was
intended to deal with "things of a temporary nature", not indefinite alienations which had
the potential to extend far into the unforseen future. Section 28 is concerned with the
short-term, temporary use of the reserve by a person other than a band member. The
phrase "any longer period" in s. 28(2), consistent with this interpretation, is best
understood as a period defined in relatively short terms of months and years. This phrase
relates to the earlier phrase "a period not exceeding one year", thus suggesting that what
Parliament intended by "any longer period" was also a period capable of being expressed
in finite calendar terms. An alienation which has the potential to go on as long as anyone
can foresee falls outside the scope of s. 28(2). For purposes of guidance in other cases,
commitments longer than the two-year mandate of band councils should not be transacted
through s. 28(2).
This interpretation of s. 28(2) which confines it to short-term uses of Indian land fits
perfectly with the other sections of the Indian Act relating to land and with the broader
theme of inalienability of Indian reserve land that runs through the Act as a whole. It is
also consistent with the policy of the Royal Proclamation, 1763 and the principle that the
long-term alienation of interests in Indian lands may only be effected through surrender to
the Crown and consent of the band membership as a whole under s. 37 of the Indian Act
or by expropriation under s. 35.
Since s. 28(2) does not permit long-term, indefinite alienation of interests in reserve land,
a declaration that the permit is void should be granted, but the operation of that
declaration should be suspended for a period of two years to permit the parties and others
in similar situations to renegotiate or make new arrangements.
30
St. Mary's Indian Band v. Cranbrook (City) [1997] 2 S.C.R. 657: Indians -Reserves -- Definition of "reserve" amended to include "designated lands"
released or surrendered "otherwise than absolutely" -- Reserve lands
surrendered at market value for airport but with the proviso that land would revert
to reserve if not used for public purposes -- Whether lands surrendered for
airport "designated lands" -- Whether common law real property principles apply
to surrender of Indian reserve lands
Present: Lamer C.J. and La Forest, L'Heureux-Dubé, Sopinka, Gonthier, Cory,
McLachlin, Iacobucci and Major JJ.
ON APPEAL FROM THE COURT OF APPEAL FOR BRITISH COLUMBIA
Indians -- Reserves -- Definition of "reserve" amended to include "designated lands"
released or surrendered "otherwise than absolutely" -- Reserve lands surrendered at
market value for airport but with the proviso that land would revert to reserve if not used
for public purposes -- Whether lands surrendered for airport "designated lands" -Whether common law real property principles apply to surrender of Indian reserve lands
-- Indian Act, R.S.C. 1952, c. 149, ss. 2(1) "reserve", "surrendered lands", 37(1), 38(1),
(2) -- Indian Act, R.S.C., 1985, c. I-5, ss. 2(1) "designated lands", "reserve", 37(1), (2),
38(1), (2), 83(1)(a).
In 1966 the appellants surrendered part of their reserve for full market value to the
Federal Crown for use as a municipal airport and subject to the stipulation that it would
revert to the band if it ceased to be used for public purposes. The Indian Act limits a
band's property tax power to interests of land "in the reserve", but in 1988 the Kamloops
Amendments amended the Indian Act to provide that certain forms of surrendered land -land surrendered "otherwise than absolutely" -- would be brought within the legal
definition of reserve. The appellants levied property taxes in 1992 on the ground that the
stipulation to the surrender made the transfer "otherwise than absolut[e]" with the result
that the surrendered land fell within the "designated lands" category of the reserve.
When the respondent refused to pay, the band successfully sued but the judgment at trial
was reversed on appeal. The Attorney General of Canada was granted intervener status
because the band claimed taxes from it under identical circumstances but in a separate
action.
The central question before this Court was whether the appellants' surrender was made
"otherwise than absolutely" such that these surrendered lands now fall within the
definition of "designated lands" under the current Indian Act. This required the Court to
consider whether the sui generis nature of native land rights means that common law real
property principles do not apply to the surrender of the Indian reserve lands under the
provisions of the Indian Act.
Held: The appeal should be dismissed.
Given the sui generis nature of native land rights, the Court must go beyond the usual
restrictions of the common law (which would embrace the minutiae of the language in the
surrender documents and traditional distinctions between determinable limitations and
conditions subsequent) and look more closely at the respective intentions of the band and
the Crown when the lands were surrendered.
31
The appellants intended to part with the land on an absolute basis. First, the band
surrendered the land for sale. Second, the band entered into negotiations with the Crown
upon the full understanding that the impugned lands were to be sold for use as an airport.
Third, in return for its surrender, the Crown paid the appellants the full market value of
the land. The mere fact that the band included a rider in its surrender does not necessarily
mean that the surrender was other than absolute. "Absolute" and "conditional" are not
mutually exclusive terms -- either conceptually or under the scheme of the Indian Act. A
key element of both the 1952 and 1988 versions of the Indian Act is that they expressly
provide that a surrender can be both absolute and conditional.
The Kamloops Amendments created a two-tier system of surrenders which was intended
to clarify the status of reserve lands surrendered for lease primarily for purposes of
taxation. Surrenders for lease fall within the definition of "designated lands" and
surrenders for sale remain beyond the definition of reserve. The broad phrase "otherwise
than absolutely" allows for other limited forms of surrenders (such as a right of way) to be
considered designated land and yet ensures that other forms of permanent surrenders, be
they conditional or unconditional (such as an exchange or gift) remain beyond the notion
of reserve land. The definition of "designated lands" therefore does not capture the airport
lands.
Delgamuukw v. British Columbia [1997] 3 S.C.R. 1010: Aboriginal rights -Aboriginal land title -- Claim made for large tract -- Content of aboriginal title -How aboriginal title protected by Constitution Act, 1982 -- What required to prove
aboriginal title -- Whether claim to self-government made out -- Whether province
could extinguish aboriginal rights -- Evidence -- Oral history and native law and
tradition -- Weight to be given evidence
Present: Lamer C.J. and La Forest, L'Heureux-Dubé, Sopinka, Cory, McLachlin and
Major JJ.
ON APPEAL FROM THE COURT OF APPEAL FOR BRITISH COLUMBIA
Constitutional law -- Aboriginal rights -- Aboriginal land title -- Claim made for large
tract -- Content of aboriginal title -- How aboriginal title protected by s. 35(1) of
Constitution Act, 1982 -- What required to prove aboriginal title -- Whether claim to selfgovernment made out -- Whether province could extinguish aboriginal rights after 1871,
either under own jurisdiction or through the operation of s. 88 of the Indian Act
(incorporating provincial laws of general application by reference) -- Constitution Act,
1982, s. 35(1) -- Indian Act, R.S.C., 1985, c. I-5, s. 88.
Constitutional law -- Aboriginal rights -- Aboriginal land title -- Evidence -- Oral history
and native law and tradition -- Weight to be given evidence -- Ability of Court to interfere
with trial judge's factual findings.
Courts -- Procedure -- Land claims -- Aboriginal title and self-government -- Claim
altered but no formal amendments to pleadings made -- Whether pleadings precluded the
Court from entertaining claims.
32
The appellants, all Gitksan or Wet'suwet'en hereditary chiefs, both individually and on
behalf of their "Houses", claimed separate portions of 58,000 square kilometres in British
Columbia. For the purpose of the claim, this area was divided into 133 individual
territories, claimed by the 71 Houses. This represents all of the Wet'suwet'en people, and
all but 12 of the Gitksan Houses. Their claim was originally for "ownership" of the
territory and "jurisdiction" over it. (At this Court, this was transformed into, primarily, a
claim for aboriginal title over the land in question.) British Columbia counterclaimed for
a declaration that the appellants have no right or interest in and to the territory or
alternatively, that the appellants' cause of action ought to be for compensation from the
Government of Canada.
At trial, the appellants' claim was based on their historical use and "ownership" of one or
more of the territories. In addition, the Gitksan Houses have an "adaawk" which is a
collection of sacred oral tradition about their ancestors, histories and territories. The
Wet'suwet'en each have a "kungax" which is a spiritual song or dance or performance
which ties them to their land. Both of these were entered as evidence on behalf of the
appellants. The most significant evidence of spiritual connection between the Houses and
their territory was a feast hall where the Gitksan and Wet'suwet'en people tell and retell
their stories and identify their territories to remind themselves of the sacred connection
that they have with their lands. The feast has a ceremonial purpose but is also used for
making important decisions.
The trial judge did not accept the appellants' evidence of oral history of attachment to the
land. He dismissed the action against Canada, dismissed the plaintiffs' claims for
ownership and jurisdiction and for aboriginal rights in the territory, granted a declaration
that the plaintiffs were entitled to use unoccupied or vacant land subject to the general
law of the province, dismissed the claim for damages and dismissed the province's
counterclaim. No order for costs was made. On appeal, the original claim was altered in
two different ways. First, the claims for ownership and jurisdiction were replaced with
claims for aboriginal title and self-government, respectively. Second, the individual
claims by each House were amalgamated into two communal claims, one advanced on
behalf of each nation. There were no formal amendments to the pleadings to this effect.
The appeal was dismissed by a majority of the Court of Appeal.
The principal issues on the appeal, some of which raised a number of sub-issues, were as
follows: (1) whether the pleadings precluded the Court from entertaining claims for
aboriginal title and self-government; (2) what was the ability of this Court to interfere
with the factual findings made by the trial judge; (3) what is the content of aboriginal
title, how is it protected by s. 35(1) of the Constitution Act, 1982, and what is required for
its proof; (4) whether the appellants made out a claim to self-government; and, (5)
whether the province had the power to extinguish aboriginal rights after 1871, either
under its own jurisdiction or through the operation of s. 88 of the Indian Act.
Held: The appeal should be allowed in part and the cross-appeal should be dismissed.
Whether the Claims Were Properly Before the Court
Per Lamer C.J. and Cory, McLachlin, and Major JJ.: The claims were properly before the
Court. Although the pleadings were not formally amended, the trial judge did allow a de
facto amendment to permit a claim for aboriginal rights other than ownership and
33
jurisdiction. The respondents did not appeal this de facto amendment and the trial judge's
decision on this point must accordingly stand.
No amendment was made with respect to the amalgamation of the individual claims
brought by the individual Gitksan and Wet'suwet'en Houses into two collective claims,
one by each nation, for aboriginal title and self-government. The collective claims were
simply not in issue at trial and to frame the case on appeal in a different manner would
retroactively deny the respondents the opportunity to know the appellants' case.
A new trial is necessary. First, the defect in the pleadings prevented the Court from
considering the merits of this appeal. The parties at a new trial would decide whether any
amendment was necessary to make the pleadings conform with the other evidence. Then,
too, appellate courts, absent a palpable and overriding error, should not substitute their
own findings of fact even when the trial judge misapprehended the law which was
applied to those facts. Appellate intervention is warranted, however, when the trial court
fails to appreciate the evidentiary difficulties inherent in adjudicating aboriginal claims
when applying the rules of evidence and interpreting the evidence before it.
Per La Forest and L'Heureux-Dubé JJ.: The amalgamation of the appellants' individual
claims technically prevents a consideration of the merits. However, there is a more
substantive problem with the pleadings. The appellants sought a declaration of
"aboriginal title" but attempted, in essence, to prove that they had complete control over
the territory. It follows that what the appellants sought by way of declaration and what
they set out to prove by way of the evidence were two different matters. A new trial
should be ordered.
The Ability of the Court to Interfere with the Trial Judge's Factual Findings
Per Lamer C.J. and Cory, McLachlin and Major JJ.: The factual findings made at trial
could not stand because the trial judge's treatment of the various kinds of oral histories
did not satisfy the principles laid down in R. v. Van der Peet. The oral histories were used
in an attempt to establish occupation and use of the disputed territory which is an
essential requirement for aboriginal title. The trial judge refused to admit or gave no
independent weight to these oral histories and then concluded that the appellants had not
demonstrated the requisite degree of occupation for "ownership". Had the oral histories
been correctly assessed, the conclusions on these issues of fact might have been very
different.
The Content of Aboriginal Title, How It Is Protected by s. 35(1) of the Constitution Act,
1982, and the Requirements Necessary to Prove It
Per Lamer C.J. and Cory, McLachlin and Major JJ.: Aboriginal title encompasses the
right to exclusive use and occupation of the land held pursuant to that title for a variety of
purposes, which need not be aspects of those aboriginal practices, customs and traditions
which are integral to distinctive aboriginal cultures. The protected uses must not be
irreconcilable with the nature of the group's attachment to that land.
Aboriginal title is sui generis, and so distinguished from other proprietary interests, and
characterized by several dimensions. It is inalienable and cannot be transferred, sold or
surrendered to anyone other than the Crown. Another dimension of aboriginal title is its
sources: its recognition by the Royal Proclamation, 1763 and the relationship between the
common law which recognizes occupation as proof of possession and systems of
34
aboriginal law pre-existing assertion of British sovereignty. Finally, aboriginal title is
held communally.
The exclusive right to use the land is not restricted to the right to engage in activities
which are aspects of aboriginal practices, customs and traditions integral to the claimant
group's distinctive aboriginal culture. Canadian jurisprudence on aboriginal title frames
the "right to occupy and possess" in broad terms and, significantly, is not qualified by the
restriction that use be tied to practice, custom or tradition. The nature of the Indian
interest in reserve land which has been found to be the same as the interest in tribal lands
is very broad and incorporates present-day needs. Finally, aboriginal title encompasses
mineral rights and lands held pursuant to aboriginal title should be capable of
exploitation. Such a use is certainly not a traditional one.
The content of aboriginal title contains an inherent limit in that lands so held cannot be
used in a manner that is irreconcilable with the nature of the claimants' attachment to
those lands. This inherent limit arises because the relationship of an aboriginal
community with its land should not be prevented from continuing into the future.
Occupancy is determined by reference to the activities that have taken place on the land
and the uses to which the land has been put by the particular group. If lands are so
occupied, there will exist a special bond between the group and the land in question such
that the land will be part of the definition of the group's distinctive culture. Land held by
virtue of aboriginal title may not be alienated because the land has an inherent and unique
value in itself, which is enjoyed by the community with aboriginal title to it. The
community cannot put the land to uses which would destroy that value. Finally, the
importance of the continuity of the relationship between an aboriginal community and its
land, and the non-economic or inherent value of that land, should not be taken to detract
from the possibility of surrender to the Crown in exchange for valuable consideration. On
the contrary, the idea of surrender reinforces the conclusion that aboriginal title is limited.
If aboriginal peoples wish to use their lands in a way that aboriginal title does not permit,
then they must surrender those lands and convert them into non-title lands to do so.
Aboriginal title at common law was recognized well before 1982 and is accordingly
protected in its full form by s. 35(1). The constitutionalization of common law aboriginal
rights, however, does not mean that those rights exhaust the content of s. 35(1). The
existence of an aboriginal right at common law is sufficient, but not necessary, for the
recognition and affirmation of that right by s. 35(1).
Constitutionally recognized aboriginal rights fall along a spectrum with respect to their
degree of connection with the land. At the one end are those aboriginal rights which are
practices, customs and traditions integral to the distinctive aboriginal culture of the group
claiming the right but where the use and occupation of the land where the activity is
taking place is not sufficient to support a claim of title to the land. In the middle are
activities which, out of necessity, take place on land and indeed, might be intimately
related to a particular piece of land. Although an aboriginal group may not be able to
demonstrate title to the land, it may nevertheless have a site-specific right to engage in a
particular activity. At the other end of the spectrum is aboriginal title itself which confers
more than the right to engage in site-specific activities which are aspects of the practices,
customs and traditions of distinctive aboriginal cultures. Site-specific rights can be made
35
out even if title cannot. Because aboriginal rights can vary with respect to their degree of
connection with the land, some aboriginal groups may be unable to make out a claim to
title, but will nevertheless possess aboriginal rights that are recognized and affirmed by s.
35(1), including site-specific rights to engage in particular activities.
Aboriginal title is a right to the land itself. That land may be used, subject to the inherent
limitations of aboriginal title, for a variety of activities, none of which need be
individually protected as aboriginal rights under s. 35(1). Those activities are parasitic on
the underlying title. Section 35(1), since its purpose is to reconcile the prior presence of
aboriginal peoples with the assertion of Crown sovereignty, must recognize and affirm
both aspects of that prior presence -- first, the occupation of land, and second, the prior
social organization and distinctive cultures of aboriginal peoples on that land.
The test for the identification of aboriginal rights to engage in particular activities and the
test for the identification of aboriginal title, although broadly similar, are distinct in two
ways. First, under the test for aboriginal title, the requirement that the land be integral to
the distinctive culture of the claimants is subsumed by the requirement of occupancy.
Second, whereas the time for the identification of aboriginal rights is the time of first
contact, the time for the identification of aboriginal title is the time at which the Crown
asserted sovereignty over the land.
In order to establish a claim to aboriginal title, the aboriginal group asserting the claim
must establish that it occupied the lands in question at the time at which the Crown
asserted sovereignty over the land subject to the title. In the context of aboriginal title,
sovereignty is the appropriate time period to consider for several reasons. First, from a
theoretical standpoint, aboriginal title arises out of prior occupation of the land by
aboriginal peoples and out of the relationship between the common law and pre-existing
systems of aboriginal law. Aboriginal title is a burden on the Crown's underlying title.
The Crown, however, did not gain this title until it asserted sovereignty and it makes no
sense to speak of a burden on the underlying title before that title existed. Aboriginal title
crystallized at the time sovereignty was asserted. Second, aboriginal title does not raise
the problem of distinguishing between distinctive, integral aboriginal practices, customs
and traditions and those influenced or introduced by European contact. Under common
law, the act of occupation or possession is sufficient to ground aboriginal title and it is not
necessary to prove that the land was a distinctive or integral part of the aboriginal society
before the arrival of Europeans. Finally, the date of sovereignty is more certain than the
date of first contact.
Both the common law and the aboriginal perspective on land should be taken into account
in establishing the proof of occupancy. At common law, the fact of physical occupation is
proof of possession at law, which in turn will ground title to the land. Physical occupation
may be established in a variety of ways, ranging from the construction of dwellings
through cultivation and enclosure of fields to regular use of definite tracts of land for
hunting, fishing or otherwise exploiting its resources. In considering whether occupation
sufficient to ground title is established, the group's size, manner of life, material
resources, and technological abilities, and the character of the lands claimed must be
taken into account. Given the occupancy requirement, it was not necessary to include as
part of the test for aboriginal title whether a group demonstrated a connection with the
36
piece of land as being of central significance to its distinctive culture. Ultimately, the
question of physical occupation is one of fact to be determined at trial.
If present occupation is relied on as proof of occupation pre-sovereignty, there must be a
continuity between present and pre-sovereignty occupation. Since conclusive evidence of
pre-sovereignty occupation may be difficult, an aboriginal community may provide
evidence of present occupation as proof of pre-sovereignty occupation in support of a
claim to aboriginal title. An unbroken chain of continuity need not be established between
present and prior occupation. The fact that the nature of occupation has changed would
not ordinarily preclude a claim for aboriginal title, as long as a substantial connection
between the people and the land is maintained. The only limitation on this principle might
be that the land not be used in ways which are inconsistent with continued use by future
generations of aboriginals.
At sovereignty, occupation must have been exclusive. This requirement flows from the
definition of aboriginal title itself, which is defined in terms of the right to exclusive use
and occupation of land. The test must take into account the context of the aboriginal
society at the time of sovereignty. The requirement of exclusive occupancy and the
possibility of joint title can be reconciled by recognizing that joint title can arise from
shared exclusivity. As well, shared, non-exclusive aboriginal rights short of aboriginal
title but tied to the land and permitting a number of uses can be established if exclusivity
cannot be proved. The common law should develop to recognize aboriginal rights as they
were recognized by either de facto practice or by aboriginal systems of governance.
Per La Forest and L'Heureux-Dubé JJ.: "Aboriginal title" is based on the continued
occupation and use of the land as part of the aboriginal peoples' traditional way of life.
This sui generis interest is not equated with fee simple ownership; nor can it be described
with reference to traditional property law concepts. It is personal in that it is generally
inalienable except to the Crown and, in dealing with this interest, the Crown is subject to
a fiduciary obligation to treat the aboriginal peoples fairly. There is reluctance to define
more precisely the right of aboriginal peoples to live on their lands as their forefathers
had lived.
The approach to defining the aboriginal right of occupancy is highly contextual. A
distinction must be made between (1) the recognition of a general right to occupy and
possess ancestral lands and (2) the recognition of a discrete right to engage in an
aboriginal activity in a particular area. The latter has been defined as the traditional use,
by a tribe of Indians, that has continued from pre-contact times of a particular area for a
particular purpose. By contrast, a general claim to occupy and possess vast tracts of
territory is the right to use the land for a variety of activities related to the aboriginal
society's habits and mode of life. As well, in defining the nature of "aboriginal title",
reference need not be made to statutory provisions and regulations dealing with reserve
lands.
In defining the nature of "aboriginal title", reference need not be made to statutory
provisions and regulations dealing specifically with reserve lands. Though the interest of
an Indian band in a reserve has been found to be derived from, and to be of the same
nature as, the interest of an aboriginal society in its traditional tribal lands, it does not
37
follow that specific statutory provisions governing reserve lands should automatically
apply to traditional tribal lands.
The "key" factors for recognizing aboriginal rights under s. 35(1) are met in the present
case. First, the nature of an aboriginal claim must be identified precisely with regard to
particular practices, customs and traditions. When dealing with a claim of "aboriginal
title", the court will focus on the occupation and use of the land as part of the aboriginal
society's traditional way of life.
Second, an aboriginal society must specify the area that has been continuously used and
occupied by identifying general boundaries. Exclusivity means that an aboriginal group
must show that a claimed territory is indeed its ancestral territory and not the territory of
an unconnected aboriginal society. It is possible that two or more aboriginal groups may
have occupied the same territory and therefore a finding of joint occupancy would not be
precluded.
Third, the aboriginal right of possession is based on the continued occupation and use of
traditional tribal lands since the assertion of Crown sovereignty. However, the date of
sovereignty may not be the only relevant time to consider. Continuity may still exist
where the present occupation of one area is connected to the pre-sovereignty occupation
of another area. Also, aboriginal peoples claiming a right of possession may provide
evidence of present occupation as proof of prior occupation. Further, it is not necessary to
establish an unbroken chain of continuity.
Fourth, if aboriginal peoples continue to occupy and use the land as part of their
traditional way of life, the land is of central significance to them. Aboriginal occupancy
refers not only to the presence of aboriginal peoples in villages or permanently settled
areas but also to the use of adjacent lands and even remote territories used to pursue a
traditional mode of life. Occupancy is part of aboriginal culture in a broad sense and is,
therefore, absorbed in the notion of distinctiveness. The Royal Proclamation, 1763
supports this approach to occupancy.
McLachlin J. was in substantial agreement.
Infringements of Aboriginal Title: The Test of Justification
Per Lamer C.J. and Cory, McLachlin and Major JJ.: Constitutionally recognized
aboriginal rights are not absolute and may be infringed by the federal and provincial
governments if the infringement (1) furthers a compelling and substantial legislative
objective and (2) is consistent with the special fiduciary relationship between the Crown
and the aboriginal peoples. The development of agriculture, forestry, mining and
hydroelectric power, the general economic development of the interior of British
Columbia, protection of the environment or endangered species, and the building of
infrastructure and the settlement of foreign populations to support those aims, are
objectives consistent with this purpose. Three aspects of aboriginal title are relevant to the
second part of the test. First, the right to exclusive use and occupation of land is relevant
to the degree of scrutiny of the infringing measure or action. Second, the right to choose
to what uses land can be put, subject to the ultimate limit that those uses cannot destroy
the ability of the land to sustain future generations of aboriginal peoples, suggests that the
fiduciary relationship between the Crown and aboriginal peoples may be satisfied by the
involvement of aboriginal peoples in decisions taken with respect to their lands. There is
38
always a duty of consultation and, in most cases, the duty will be significantly deeper than
mere consultation. And third, lands held pursuant to aboriginal title have an inescapable
economic component which suggests that compensation is relevant to the question of
justification as well. Fair compensation will ordinarily be required when aboriginal title is
infringed.
Per La Forest and L'Heureux-Dubé JJ.: Rights that are recognized and affirmed are not
absolute. Government regulation can therefore infringe upon aboriginal rights if it meets
the test of justification under s. 35(1). The approach is highly contextual.
The general economic development of the interior of British Columbia, through
agriculture, mining, forestry and hydroelectric power, as well as the related building of
infrastructure and settlement of foreign populations, are valid legislative objectives that,
in principle, satisfy the first part of the justification analysis. Under the second part, these
legislative objectives are subject to accommodation of the aboriginal peoples' interests.
This accommodation must always be in accordance with the honour and good faith of the
Crown. One aspect of accommodation of "aboriginal title" entails notifying and
consulting aboriginal peoples with respect to the development of the affected territory.
Another aspect is fair compensation.
Self-Government
Per The Court: The errors of fact made by the trial judge, and the resultant need for a new
trial, made it impossible for this Court to determine whether the claim to self-government
had been made out.
Extinguishment
Per Lamer C.J. and Cory, McLachlin and Major JJ.: Section 91(24) of the Constitution
Act, 1867 (the federal power to legislate in respect of Indians) carries with it the
jurisdiction to legislate in relation to aboriginal title, and by implication, the jurisdiction
to extinguish it. The ownership by the provincial Crown (under s. 109) of lands held
pursuant to aboriginal title is separate from jurisdiction over those lands. Notwithstanding
s. 91(24), provincial laws of general application apply proprio vigore to Indians and
Indian lands.
A provincial law of general application cannot extinguish aboriginal rights. First, a law of
general application cannot, by definition, meet the standard "of clear and plain intention"
needed to extinguish aboriginal rights without being ultra vires the province. Second, s.
91(24) protects a core of federal jurisdiction even from provincial laws of general
application through the operation of the doctrine of interjurisdictional immunity. That
core has been described as matters touching on "Indianness" or the "core of Indianness".
Provincial laws which would otherwise not apply to Indians proprio vigore are allowed to
do so by s. 88 of the Indian Act which incorporates by reference provincial laws of
general application. This provision, however, does not "invigorate" provincial laws which
are invalid because they are in relation to Indians and Indian lands.
Per La Forest and L'Heureux-Dubé JJ.: The province had no authority to extinguish
aboriginal rights either under the Constitution Act, 1867 or by virtue of s. 88 of the Indian
Act.
39
R. v. Nikal [1996] 1 S.C.R. 1013: Aboriginal rights -- Fishing rights -- Appellant
charged with fishing without a licence -- Whether licensing scheme infringing
appellant's aboriginal rights and therefore not applying to him
Present: Lamer C.J. and La Forest, L'Heureux-Dubé, Sopinka, Gonthier, Cory,
McLachlin, Iacobucci and Major JJ.
ON APPEAL FROM THE COURT OF APPEAL FOR BRITISH COLUMBIA
Indians -- Aboriginal rights -- Fishing rights -- Appellant charged with fishing without
a licence -- Whether licensing scheme infringing appellant's
aboriginal rights and therefore not applying to him -- Constitution Act, 1982, ss. 35(1), 52
-- British Columbia Fishery (General) Regulations,
SOR/84-248, s. 4(1).
Appellant is a native charged with fishing without a licence contrary to s. 4(1) of the
British Columbia Fishery (General) Regulations. Native persons, although required to
have a licence, were entitled to a free permit to fish for salmon in the manner they
preferred. Appellant had been gaffing salmon in the Bulkley River where it flows through
his reserve. He took the position that the licensing scheme infringed his aboriginal rights
as provided in s. 35(1) of the Constitution Act, 1982 and was therefore inapplicable. He
further contended that the river is, at this point, part of his reserve so that only the band
by-law, which allowed band, members unrestricted fishing in the river, applied.
Appellant was acquitted at trial and the acquittals were upheld by the Summary
Conviction Appeal Judge. The acquittals were set aside by the Court of Appeal.
The constitutional question before this Court queried whether s. 4(1) of the Regulations
and licences issued under it were of no force or effect with respect to the
appellant in the circumstances by reason of the aboriginal rights protected by s. 35 of the
Constitution Act, 1982. In essence, two issues are raised: (1) whether
the band's fishing by-law applies to the Bulkley River where it flows through the band's
reserve, and (2) whether the licence requirement under s. 4(1) of the
Regulations infringes the appellant's aboriginal rights contrary to s. 35.
Held (L'Heureux-Dubé and McLachlin JJ. dissenting): The appeal should be allowed.
Per Lamer C.J. and La Forest, Sopinka, Gonthier, Cory, Iacobucci and Major JJ.:
Historical documents available to the public were relied on. All parties had
an opportunity to review and make submissions pertaining to them.
The Crown did not intend to grant an exclusive fishery to the band when it created the
reserve. Reserve commissioners were not given authority to bind the Crown
and were instructed not to assign fishing rights irrevocably and absolutely. The Crown's
policy against the granting of exclusive fisheries to the Indians was often and
40
forcefully stated. No evidence supported the position that the Department of Indian
Affairs had intended to grant the bands exclusive fisheries but the Department
of Marine and Fisheries overrode this intention in an inter-departmental jurisdiction
dispute. Notwithstanding the band's claim that it was misled as to the grant of an
exclusive fishery, the facts surrounding this particular grant considered in light of the
expressed general policy indicate an intention to allot only the land of the
reserve and not the river.
The portion of the river flowing through the reserve (with the reserve on both sides)
does not form part of the reserve through operation of the doctrine of ad
medium filum aquae to non-navigable water. This doctrine, assuming without deciding
that it should apply in Canada, does not apply for three reasons. First, it
only applies to non-navigable rivers and the Bulkley River, taking into account its entire
length, should be considered to be navigable. Secondly, when the reserve
was created at common law the fishery was a right severable from the title to the river
bed. Ownership of the river bed had no effect on the fishery as the Crown
specifically refused to grant an exclusive fishery to the band. Thirdly, even if the
presumption could be said to apply, it was rebutted in light of the evidence that the
Crown never allotted nor intended to allot the river bed to the band.
The onus of establishing a prima facie infringement of an aboriginal right rests on the
person claiming that right. The existence and the extent of the aboriginal
right must first be established. The right established was to fish for food and ceremonial
purposes and to provide members of the band with fish necessary for
personal food and ceremonial needs but no position was taken as to whether the right
extends beyond that. The appellant had no right not to comply with the
directions of the Department of Fisheries and Oceans.
A prima facie infringement of an aboriginal right does not necessarily occur if
something should affect that right. Rights do not exist in a vacuum and the ability
to exercise personal or group rights is necessarily limited by the rights of others. The
government must ultimately be able to determine and direct the way in which
these rights should interact. Absolute freedom without any restriction is not an acceptable
concept in our society.
The aboriginal right to fish must be balanced against the need to conserve the fishery
stock. This right cannot automatically deny the ability of the government to
set up a licensing scheme or program as part of a conservation program since the right's
exercise depends on the continued existence of the resource.
Only aboriginal peoples can exercise aboriginal rights. The nature and scope of these
rights will frequently be dependant upon membership in particular bands who
have established particular rights in specific localities. In this context, a licence may be
the least intrusive way of establishing the existence of an individual's
aboriginal right as well as preventing non-aboriginals from exercising aboriginal rights.
41
Conditions of the licence can infringe the rights guaranteed by s. 35 of the
Constitution Act, 1982. The test established in Sparrow requires: (1) an assessment
of whether the legislation in question has the effect of interfering with an existing
aboriginal right, and if so, whether that effect represents a prima facie infringement
of s. 35(1); and, (2) a determination of whether the limitation is unreasonable, imposes an
undue hardship or denies holders of the right the preferred means of
exercising the right. The onus of proving a prima facie infringement lies on the individual
or group challenging the legislation.
The licence, as distinct from its conditions, does not constitute an infringement of s.
35(1). The simple requirement of a licence is not in itself unreasonable;
rather, it is necessary for the exercise of the right itself. A licence which is freely and
readily available cannot be considered an undue hardship for that term implies
more than mere inconvenience. The licence by itself, without its conditions, cannot affect
the preferred means of exercising the right since it is nothing more than a
form of identification.
The government must justify those conditions of a licence which on their face infringe
the s. 35 right to fish. The infringing conditions of the 1986 licence are:
(i) the restriction to fishing for food only; (ii) the notations providing that fishing time
was subject to change by public notice and that Indian food fishing outside set
dates must be licensed by the Provincial Fish and Wildlife Conservation Officer; (iii) the
restriction to fishing for the fisher and his or her family only; and (iv) the
restriction to fishing for salmon only. These conditions are prima facie infringements of
the appellant's aboriginal rights: (i) to determine band members who will
receive the fish for ultimate consumption; (ii) to select the use (food, ceremonial or
religious) of the fish; (iii) to fish for steelhead; and, (iv) to choose the period of
time to fish in the river. Other terms of the licence could be infringements if they
contradicted the appellant's aboriginal rights. These terms provide for: (i) the
prescribed waters in which fishing can take place; (ii) the type of gear which can be used;
and, (iii) the fishing times and days. Non-enforcement does not result in
these conditions being valid. The holder of a constitutional right need not rely upon the
exercise of prosecutorial discretion and restraint for the protection of the
right.
Sparrow set out questions to be addressed in determining if an infringement of
aboriginal or treaty rights could be justified: (1) whether there was a valid
legislative objective; and if so (2) whether the honour of the Crown and the special trust
relationship and the responsibility of the government vis-à-vis aboriginals
was at stake. Further questions might arise depending on the circumstances of the inquiry:
whether there had been as little infringement as possible in order to effect
the desired result; whether, in a situation of expropriation, fair compensation was
available, and whether the aboriginal group in question had been consulted with
42
respect to the conservation measures being implemented. The concept of reasonableness
forms an integral part of the Sparrow test for justification.
Reasonableness must come into play in aspects of information and consultation.
Regulations pertaining to conservation may have to be enacted expeditiously,
however, if a crisis is to be avoided. The nature of the situation will have to be taken into
account.
The government adduced no evidence to justify the conditions of the licence and
accordingly did not meet its onus to do so. The licence and its integral
conditions are an indivisible whole. The conditions, even if they could be considered
separately, were not severable.
Per L'Heureux-Dubé and McLachlin JJ. (dissenting): The requirement of a licence did
not constitute a prima facie infringement of the appellant's constitutionally
protected right to fish for food.
The issue before the Court was whether the act of licensing per se was
unconstitutional and not whether the conditions attached to the licence were
unconstitutional. The charge of failing to obtain a validly required licence must be
distinguished from breach of one of the conditions of the licence. The invalidity of
licence conditions does not excuse a person from obtaining the licence required by law
even if the conditions are "integral" to the licence.
43