PROPERTY

PROPERTY............................................................................................................................................. 1Germany.................................................................................................................................................. 2

89 BVerfGE 1 (1993)....................................................................................................................... 2India......................................................................................................................................................... 6

GENERAL FEATURES OF THE STATUTES DEALING WITH LAND REFORMS IN INDIA.........6RIGHT TO PROPERTY AND THE LEGISLATIVE AND JUDICIAL ATTITUDE.............................7

Anantha Prbhu v.District Colector : AIR 1975 Ker 117...................................................................10ZIMBABWE:......................................................................................................................................... 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....................................................10CW v Commissioner of Taxes 1988 (2) ZLR 27 (HC): State could not erode compensation by taxing it. Reasonable justification in a democratic society...............................................................10Mhora 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.......................................................................................................................................... 11Chairman, 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.......................................................12Nyambirai 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:............................................................................................................................................. 13Right 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............................................................................................................................. 14Expropriation:................................................................................................................................. 14Local Government Powers,.............................................................................................................14Property rights may be infringed:....................................................................................................14Warrants usually required before enter and seizure:........................................................................14

EUROPEAN COMMUNITY.................................................................................................................. 14Papamichlopoulos v Greece EHRR 1993:......................................................................................15Wiesinger v Austria 16 EHRR 258 1991:........................................................................................15Scotts of Greenock Ltd and Lithgows Ltd v United Kingodom 12 EHRR 97:..................................15Ciba SA and Others v Ufficicio Centrale Brevetti 1979 European Commercial Cases (ECC) 67.....15KATIKARIDIS 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............................15PRÖTSCH 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.............................................................18GUILLEMIN 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"................................................................................................23THE 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............................................................................................................... 26Torgeson, 'Indians Against Immigrants', 14 Am. Indian L.Rev. 52, *62..........................................27Opetchesaht 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,28St. 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................................................................................................................................... 31Delgamuukw 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................................................32R. 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:

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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 occupy (Besitzrecht) of the tenant in the rented apartment flowing from the lease is

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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 his living needs] has, as a matter of principle, to be respected and may not be

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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 alteration was only way to reduce the physical distance between son and mother

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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 considered a single unit. The number of acres calculation differs according to the nature of the land, i.e wet or dry.

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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......,

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 ....,

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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. 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

1 ?M.P.Jain, Indian Constitutional law, N.M Tripathi,Bombay 1987, 667.8

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 ?Vajravelu v. Special Deputy Collector AIR 1965 SC 1017. 3 ?AIR 1969 SC 634

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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:

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The appellant company had acquired shares in a number of South African companies. These shares were external securities traded on the Zimbabwe 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.

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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

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

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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 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.

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UNITED KINGDOM

This section requires elaboration:

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 Rights14

Papamichlopoulos v Greece EHRR 1993: Possessions and property: deprivation; lawfulness and purpose of interference.

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

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Applicants deprived of their property - expropriation pursued lawful end in the public interest, namely improving a major road.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. Background6. 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 COMMISSION31. 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 LAWIII. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 144. 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:

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"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

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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. 1Interference (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.

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Domestic courts examined applicants' damage allegations - found that no damage had been suffered by applicants - singled out some net advantages.Conclusion: no violation (unanimously).

The applicants are Austrian citizens and own a farm at Niederthalheim, Upper Austria.PROCEEDINGS BEFORE THE COMMISSION34. 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 provisionFINAL SUBMISSIONS TO THE COURT36. 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 LAWALLEGED BREACH OF ARTICLE 1 OF PROTOCOL NO. 137. 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

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210,000. They emphasised that this damage was only imputable to the lesser yield of the parcels provisionally allocated to them.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

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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 essentially corresponded to the situation arising from the consolidation scheme (see

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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 measuresI. Article 6 § 1 of the ConventionA. Period to be taken into considerationStarting-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 proceedingsExpropriation 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. 1B. Merits of the complaintCommon 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.

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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 objectionsA. Non-compliance with six-month time-limitComplaint 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. 1Situation 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 ConventionA. Pecuniary damageApplicant 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 damageCompensation awarded.C. Costs and expensesAwarded on an equitable basis.Conclusion: respondent State to pay specified sums to applicant (seven votes to two).

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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 ofFinance 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

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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’soriginal 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 ofrestitution proceedings and therefore decisive of private rights.

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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 andcontingent 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.

(2) In this Act, "aboriginal peoples of Canada" includes the Indian, Inuit, and Metis peoples of Canada.

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(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 femalepersons.(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 ofthe "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 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.

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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 COLUMBIAIndians -- 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-of-way 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.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

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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 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

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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.

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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 COLUMBIAIndians -- 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.

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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 COLUMBIAConstitutional 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 self-government 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.

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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 CourtPer 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

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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 FindingsPer 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 ItPer 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

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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

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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 piece of land as being of central significance to its distinctive

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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 follow that specific statutory provisions governing reserve lands should automatically apply to traditional tribal lands.

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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 JustificationPer 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 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

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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-GovernmentPer 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.ExtinguishmentPer 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.

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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'saboriginal 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 theappellant 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) whetherthe 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 theRegulations 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 hadan 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 Crownand 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

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forcefully stated. No evidence supported the position that the Department of Indian Affairs had intended to grant the bands exclusive fisheries but the Departmentof 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 anexclusive fishery, the facts surrounding this particular grant considered in light of the expressed general policy indicate an intention to allot only the land of thereserve 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 admedium filum aquae to non-navigable water. This doctrine, assuming without deciding that it should apply in Canada, does not apply for three reasons. First, itonly applies to non-navigable rivers and the Bulkley River, taking into account its entire length, should be considered to be navigable. Secondly, when the reservewas 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 Crownspecifically 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 theCrown 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 aboriginalright 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 forpersonal 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 thedirections 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 abilityto 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 whichthese 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 toset 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 whohave established particular rights in specific localities. In this context, a licence may be the least intrusive way of establishing the existence of an individual'saboriginal right as well as preventing non-aboriginals from exercising aboriginal rights.

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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 assessmentof 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 infringementof 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 ofexercising 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 impliesmore 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 aform 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 setdates 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) therestriction to fishing for salmon only. These conditions are prima facie infringements of the appellant's aboriginal rights: (i) to determine band members who willreceive 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 oftime 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) theprescribed 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 inthese conditions being valid. The holder of a constitutional right need not rely upon the exercise of prosecutorial discretion and restraint for the protection of theright.

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 validlegislative 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 aboriginalswas 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 effectthe desired result; whether, in a situation of expropriation, fair compensation was available, and whether the aboriginal group in question had been consulted withrespect to the conservation measures being implemented. The concept of reasonableness forms an integral part of the Sparrow test for justification.

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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 integralconditions 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 constitutionallyprotected 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 wereunconstitutional. 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 oflicence conditions does not excuse a person from obtaining the licence required by law even if the conditions are "integral" to the licence.

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