Are there property and land rights protected in Canada’s Constitution? For years this has been the question put to our elected officials and the courts.
Some feel that because property rights are not included in the 1982 Charter, we do not have protection for our property and land rights. This is not their fault, particularly with the Courts refusing to uphold property and land rights, with the promotion of the “modernization” of what they feel is the “law.” They seem to have forgotten we have the 1867 Constitution (British North America Act [BNA]) and/or they are merely refusing to acknowledge Canadian’s rights.
An example of this was on full display in 2012-13, [Manitoba Metis Federation Inc. v. Canada (Attorney General), 2013 SCC 14]. This case involved the Constitution of 1870 (Manitoba Act, 1870) and the deal struck between the Hudson Bay Company and the Federal government. Under this constitutional Act the Metis were guaranteed certain lands in Manitoba. The federal government did not fulfill the obligations of that deal. This placed the Crown in disrepute and the Federal government was, according to the ruling of the Supreme Court, to uphold that agreement. This was section 31[1] of the 1870 Constitutional document. No wonder we hear so much about the Indigenous wanting “treaty rights” respected and upheld. This could also be why other Canadians think that they need “land/property rights” enshrined in the 1982 Charter. After all the Indigenous have section 35, of the 1982 document, and seem to be having success, regarding the Honour of the Crown and those “treaty” agreements.
Wouldn’t it have been so much simpler if it clearly stated that property/land rights were in that Charter, but only if governments, both federal and provincial, would have respected those rights?
There are, though, some issues with the 1982 constitution. If “land/property rights” were enshrined, would they, like all of our other Charter rights, be subject to section 33 – the Notwithstanding Clause? To some, the answer to that would be “yes, they would be subject to the removal by the federal and provincial governments.”
So, back to the question at hand. The 1982 constitution has section 26 included in it. It states:
“Provision
26. The guarantee in this Charter of certain rights and freedoms shall not be construed as denying the existence of any other rights or freedoms that exist in Canada.”
Some express this “provision” “confirms, the common law also affords protections of individual liberty, and the scope of these protections is independent of the Charter (Annapolis Group Inc. v. Halifax Regional Municipality, 2022 SCC 36).”[2] The justice department, of the federal government, goes on to say “Another lower court decision cited Hogg’s reference to section 26 as “a cautionary provision, included to make clear that the Charter is not to be construed as taking away any existing undeclared rights or freedoms”, but not as having the effect of constitutionalizing such additional rights or freedoms.”[3]
That said, what if there are sections, in the constitution, that protect Canadian’s property/land rights? There are, you know, and it seems, as expressed above that some “Courts” are “refusing to uphold property and land rights.”
So, what are those protective statements in our constitution?
Well, there’s section “91 (27). The Criminal Law, except the Constitution of Courts of Criminal Jurisdiction, but including the Procedure in Criminal Matters.” Everyone should be obtaining a copy of the Criminal Code of Canada. It is up to Canadians if those sections reflect what the federal government should be, or not be, including in that Code.
Then there are the sections pertaining to the various provinces and territories. They include Sections:
“92 (5) The Management and Sale of the Public Lands belonging to the Province and of the Timber and Wood thereon.” This does not include your/my land as our land is “private land” not belonging to the province.
“92 (13) Property and Civil Rights in the Province.” We need to understand that those “civil rights” are needed in this section because of the statements pertaining to the federal government regarding “civil servants,” and the payment of those “civil servants.” That is for another time, though.
92 (13) has a caveat, though, “One decision treated the recognition of a right or freedom under section 26 pertaining to the private, non-governmental sphere – notably the right to enter into a private contract – as reinforcing analysis that the Charter does not have application to that sphere”[4] supporting Canadians freedom contract.
And then there’s section 109:
“Property in Lands, Mines, etc.
109. All Lands, Mines, Minerals, and Royalties belonging to the several Provinces of Canada, Nova Scotia, and New Brunswick at the Union, and all Sums then due or payable for such Lands, Mines, Minerals, or Royalties, shall belong to the several Provinces of Ontario, Quebec, Nova Scotia, and New Brunswick in which the same are situate or arise, subject to any Trusts existing in respect thereof, and to any Interest other than that of the Province in the same”
This must be read as it was intended and in the correct context. For this one must look to the foundational document of our 1867 constitution. It states:
“56. All lands, mines, minerals and royalties vested in Her Majesty in the Provinces of Upper Canada, Lower Canada, Nova Scotia, New Brunswick and Prince Edward Island, for the use of such Provinces, shall belong to the Local Government of the territory in which the same are so situate; subject to any trusts that may exist in respect to any of such lands or to any interest of other persons in respect of the same.”[5]/[6]
Note it states as the title of section 109 “Property in Lands, Mines, etc.” and then it states “subject to any Trusts existing in respect thereof, and to any Interest other than that of the Province in the same.” Firstly, this is described in the final statement of the 1864 Resolutions – “subject to any trusts that may exist in respect to any of such lands or to any interest of other persons in respect of the same” Remember the province is “subject” to any other persons “interest,” that is your and my “interest” and our right to own, use and enjoy our “vested interests” because we have the “right, title and interest” in our land/property.
But how is it that the federal government and the provincial governments might not have control over Canadian’s land/property? That involves the “granting of the land,” to the settlers, through Crown Grants/Letters Patent and the removal of the Queen/King’s “right, title and interest.”[7] The “grants/letters patents” removed the Crown domain and if there is no King’s “right, title and interest,” in the lands described, government has no “right, title or interest” unless you, the land/property owner, grant government that right.
Hear this – This is a very short nano-second of information. It’s taken years of research and thousands of court rulings, constitutional documents, etc., do this very short explanation.
Do not jump off into the deep end [emphasis added] …This does not mean to say you can just do as you want with your land and property. You need to ensure what land/property rights you do have and you MUST not harm your neighbour. With property and land rights you have a number of responsibilities, but suffice it to say government, on all three levels, should also pay heed to section 26, 92 (5), 92 (13), 109, etc., before they continue to erode some of the most important rights Canadians have.
I hope this explains why there is confusion and only with Canadians doing the work can we, all, be secure in one of the most expensive and largest purchase/assets we will ever own.
Elizabeth Marshall
Author
Director of Research – Ontario Landowners Association
Past Chair – Canadian Justice Review Board
Legal/Legislative/General Researcher –
MPs, MPPs, Senators, Municipal Officials, Lawyers, etc.
I am not a lawyer and do not give legal advice.
[1] 31. And whereas, it is expedient, towards the extinguishment of the Indian Title to the
lands in the Province, to appropriate a portion of such ungranted lands, to the extent of
one million four hundred thousand acres thereof, for the benefit of the families of the
half-breed residents, it is hereby enacted, that, under regulations to be from time to time
made by the Governor General in Council, the Lieutenant-Governor shall select such lots or tracts in such parts of the Province as he may deem expedient, to the extent aforesaid, and divide the same among the children of the half-breed heads of families residing in the Province at the time of the said transfer to Canada, and the same shall be granted to the said children respectively, in such mode and on such conditions as to settlement and otherwise, as the Governor General in Council may from time to time determine.
[2] Section 26 – Existing rights and freedoms in Canada continue
[3] Section 26 – Existing rights and freedoms in Canada continue
[4] Section 26 – Existing rights and freedoms in Canada continue
[5] In the British North America Act, 1867 – This section becomes section 109.
Property in Lands, Mines, etc.
109. All Lands, Mines, Minerals, and Royalties belonging to the several Provinces of Canada, Nova Scotia, and New Brunswick at the Union, and all Sums then due or payable for such Lands, Mines, Minerals, or Royalties, shall belong to the several Provinces of Ontario, Quebec, Nova Scotia, and New Brunswick in which the same are situate or arise, subject to any Trusts existing in respect thereof, and to any Interest other than that of the Province in the same.
[6] 1864 – Quebec Conference: The Seventy-Two Resolutions. [authenticated October 29, 1864]
[7] “…Her Majesty the Queen in right of Ontario has no right, title or interest in and to the lands described…” Conclusion
[121] Accordingly, the plaintiff’s claim for a declaration that Her Majesty The Queen in right of Ontario is the owner of the lands lying between the water’s edge of Nottawasaga Bay and the line depicting the “line of the wood” and a declaration as to the location of the line depicting the “line of the wood” on the original plan of survey of the Township of Tiny or in the alternative for an order directing a reference to determining the location of the line depicting the line of the wood on the original plan of survey of the Township of Tiny, are dismissed as is the claim for permanent injunctive relief and therefore all of the claims of the plaintiff are dismissed.
[122] As to the defendants’ counterclaim, the defendants are entitled to the following, that is to say:
[123] A declaration that the owners of Blocks A, and B and each of the individual lots 1 to 45 inclusive Registered Plan No. 750 registered in the Registry Office for the Registry Division of Simcoe own and have title to the water’s edge of Nottawasaga Bay subject to the right of free access to the shore of Lake Huron for all vessels, boats and persons and that Her Majesty the Queen in right of Ontario has no right, title or interest in and to the lands described as Blocks A, B, and each of the individual lots 1 to 45 inclusive, Registered Plan 750 save the free access to the shore of Lake Huron for all vessels, boats and persons from Lake Huron. Ontario (Attorney General) v. Rowntree Beach Assn. Date: 1994-03-11