Judge turns down application for class-action lawsuit over Africville communal lands

A Nova Scotia Supreme Court judge has turned down an application to create a class-action lawsuitover Halifax's expropriation in the 1960s of land in Africville, the former black community on the shores of the Bedford Basin.

Nelson Carvery had asked the courtto allow former Africville residents or their descendents to sue for compensation for the loss of communal lands in the community, which dates to the1800s. Anyone who already had a claim settled or dismissed would not be included.

In a ruling issued Friday, Justice Patrick Duncansaid the plaintiff "has not satisfied the requirements"to certify theclass action, which would allow the case to proceed.

The judge said he had concerns that the size and location of communal lands hadn't been adequately defined, and it wasn't clear how it would be determined how much each resident used those lands.

But Tony Smith, a spokesperson for a group of formerAfricvilleresidents who would like to join the class action, said Tuesday he doesn't believe the judge's decision means the case isover. He said lawyers for the class-action casewill seek another hearing and try to address the judge's concerns.

"We have to make sure that ourT'sare crossed and our I's are dotted," he said. "It takes time, it's frustrating in that sense because we've been waiting over 50 years. Butwe'll just have to wait a little bit longer and make sure it gets done right."

Farm, gather berries

When the application was heard in November 2016, Carvery's lawyer, RobertPineo, estimated 300 people could join the lawsuit.

In an affidavit,Carvery explained that his family and others used common land inAfricvilleto farm, gather berries and for recreation. He also said the shoreline was used for fishing, storinggear and docking boats.

According to Carvery, his father never agreed to sell his six parcels of land to the old City of Halifax and did notreceive compensation.

He also said his family never took part in a 1996 lawsuit that ended in 2010 with a settlement agreement for some of the affected families. That agreement did not involve individual compensation but instead provided $3 million and a hectare of land so the Seaview African United Baptist Church could be rebuilt.

The lawyers defending Halifax in the current class-action case took issue with theclaim for the loss of communal lands, saying the plaintiff did not adequately describe who was an affected owner or the size andlocation of communal lands.

Duncan agreed there are problems with the "criteria for class membership,"pointing out that Africville was not incorporated with defined boundaries.

He also said there was no objective criteriato determine if a resident has "property interest in the communallands"or what actually constitutes communal lands.