Fighting Back – Stand up for your Private Property – No one else will by Jack Winkler

This article first appeared in the Landowner Magazine in the April/May 2013 edition. We thought it was worth republishing especially as municipalities are inventing new ways to control our private property with designations such as Natural Heritage Systems.

I am a Registered Professional Forester who helps landowners across the southern part of Ontario manage their woodlots.  As part of my responsibility, I need to determine what can be legally done in or to these woodlots.

I heard Liz Marshall of the Ontario Landowners Association speak on the subject of Crown Patents and it sounded like landowners have far more say in the fate of their trees than what we are given to believe.  Being suspicious of this, I spent considerable time researching Supreme Court of Canada and Ontario Superior Court of Justice Crown Patent-related judgments on their respective websites.

Concerning trees and woods, it turns out that at least two recent judgments by the Ontario Superior Court of Justice involving two specific Crown Patents support Ms. Marshall’s claim that landowners do have more authority over their land and water than they think they do.

Many Crown Patents contain the phrase “Together with all the woods and water”.  For example, original Canada Company Patents cover almost 2.5 million acres and they contain that phrase.

This phrase is known as an “express grant” as it is particular and not general in nature.

The Ontario Supreme Court of Justice judgment for Saker v. Middlesex Centre (Chief Building Official) – 2001 CanLII 28088, concerning navigable waters was later supported as an argument in Simpson v. Ontario (MNR) – 2011 onsc 1168.

Both rulings were based on the original wordings and intents of the respective Crown Patents.

Both lumped woods and waters together in their findings.

In the Saker case, Paragraphs [15] and [16], the Judge considered the included grant of woods and water to be an “express grant” that did pass to the original patentee from the Crown in fee simple.   That means that the woods with any original reservation, limitation or condition expressed in that grant do pass from owner to owner forever.

The Judge in the Simpson case, paragraphs [61] and [62],  agreed with the Saker Judge in his section called  “Express Grant”.

Carry this forward to the January 2013 Forest Conservation Bylaw templates that I found on the Ontario Woodlot Association website.

Now we have a group of foresters and Bylaw enforcement officers saying in Section ” 3: Exemptions”, Page 8, of both of their suggested bylaw templates, that for exemptions from a Bylaw, “This would include Trees on private land that the Province has retained timber rights to.”

The Province retained such timber rights through reservations that were expressed in some original Crown Patents.  In 1990, The Province voluntarily voided its reservation of trees in Crown Patents that were issued prior to April 01, 1869.  Reservations remain in effect on later Crown Patents.

This group of regulatory foresters of authority recognizes Crown Patents and their terms.

I have copies of Crown Patents that cover about 440,000 acres in total.  Almost all of these Patents contain the “Together with all the woods and water” phrase.  My copies include more than 200,000 acres in Huron and Perth Counties.   The original Crown Patent for my property within the boundaries of London covers 200 acres and it contains that phrase.

Therefore, it stands to reason that a tree cutting bylaw would have no effect against such a Crown Patent.  Since I could find no case that specifically dealt with the express grant of woods on its own, I expect arguments will still be made that a Court must still verify these particular land rights on its own merit.

In the meantime, I suggest that landowners consider hiring a forestry consultant that appears to have a like mind as yours, and insist that your wishes are recognized by both the consultant and your municipality.

If you want to personally manage your own woodlot, Provincial law does allow you to personally design, specify and approve a silvicultural prescription with its accompanying treatments, including timber harvesting, without involving a consultant.