Response to “Back Off Government: What Municipal Lawyers Need to Know about Crown Patents”

response-patentsThere seems to be some confusion, in regards to the Letters Patents/Crown Grants. The titled paper has expressed that “there are limits to the legal rights” of a patentee/grantee and it is correct, but these rights and responsibilities are covered under Common Law. Common Law is to be the only “Law” between the government and the citizens. This has been supported, not only by Supreme Court rulings, but also a Professor, in 2009.

“Hon. Mr. Loranger, QC. , Supreme Court of Canada, Mercer v. Attorney General for Ontario, 5 S.C.R. 538, Date: 1881-11-14. “In political as in civil law, in the absence of any provision specially applicable to the subject, recourse must be had to the common law, to ascertain the relations between the government and the governed.””

COMPARATIVE CONSTITUTIONAL LAW (U.S./CANADA/AUSTRALIA), 2009, Professor Helen Irving. “An appreciation of Canadian federalism requires a brief historic overview of the significance of the concept of “property and civil rights.” The phrase includes all laws governing the relationships between individuals …as opposed to the law which governs the relationship between citizens and government.”

The Letters Patent/Crown Grants are land/property grants given to the original settlers, which state that the contract also applies to any future owners of the property. This has also been expressed in 2011 from Ownership and Title to Real Property which can be found at the following web-site…

“Freehold tenure is without any incidents or obligations for the benefit of the Crown. All lands granted by the Crown in fee simple are granted in free and common socage – freehold tenure.

A fee simple may be transferred without licence or fine and the new owner holds from the Crown in the same manner as the previous tenant held from the Crown.”

We would also like to add a definition of what property is. In Manrell v. Canada 2003 it was stated:

“ Professor Ziff, in Principles of Property Law, 3rd ed. (Scarborough: Carswell, 2000), says this about property at page 2:
“Property is sometimes referred to as a bundle of rights. This simple metaphor provides one helpful way to explore the core concept. It reveals that property is not a thing, but a right, or better, a collection of rights (over things) enforceable against others. Explained another way, the term property signifies a set of relationships among people that concern claims to tangible and intangible items.

It is implicit in this notion of “property” that “property” must have or entail some exclusive right to make a claim against someone else.”
The Crown, at the time of issuance of the grant/patent can place conditions on a new grant/patent, under the Public Lands Act, but once the grant/patent has been issued it is beyond the Crown to add more conditions. It is the legislation at the time of issuance that prevails.

The Public Lands Act, unless it is read and understood as pertaining to grants that are new grants/patents being issued, the statements in the paper could be misunderstood. Prior Public Land Acts have had the same criteria at the time of issuance. For example in 1853 “An Act to amend the Law for the Sale and the Settlement of the Public Lands, [Assented to 14th June, 1853]”, it was the Commissioner of Crown Lands, in other documents is was the Minister of Interior and in other documents the Commissioner of Crown Lands and the Minister of Native Affairs all had the same authorities, but it was implemented for the sale, license or lease of “Crown/Public” property and laid out the land use conditions at the time of issuance or any reservations or terms. The authority of these “Ministers” ceased at the time of issuance of the grant/patent, depending on the stipulations in the Act and the reservations.

Public Lands Act R.S.O. 1990, CHAPTER P.43
Consolidation Period: From May 14, 2009 to the e-Laws currency date
Minister to decide as to right to patent
22. The Minister has authority to determine all questions that arise as to the rights of persons claiming to be entitled to letters patent of land located or sold under this Act (**note: this means to patents that are issued today and must meet the requirements of this present Act) and the Minister’s decision is final and conclusive. R.S.O. 1990, c. P.43, s. 22. (**note: this is at the time of issuance).

There was reference to cancellation of patents. Here are the sections:
23. Cancellation of sale, etc., of land in case of fraud or error, etc.,
31.1 Cancellation of unregistered letters patent,
32.1 Cancellation of erroneous letters patent,
32.1 (1) Cancellation of duplicate letters patent,
43. Grant of forfeited land to former owner. “
“MNR Policy PL 4.03.01 2.0 INTRODUCTION
Patents for land commonly contain reservations and, in some cases, exceptions, land use conditions, qualifications or other restrictions. These restrictions have been imposed as a result of legislation and/or policy that prevailed at the time the land was granted.

4.2.2 Land Use Condition
Occasional patents issued after 1959 may contain a land use condition authorized by Section 18 (Public Lands Act), to the effect of the following: ‘it is a condition of these letters patent that the land granted shall be used for ____________purposes only.”

Typically, land use conditions have been imposed to confine the use of lands to agricultural, conservation authority or municipal purposes.”
The authority of the Crown is in the Grant/Patent, so it is the Crown authority that is being supported, not the legislation. If something in the grant is in contradiction of the grant, the grant prevails, regardless if it is the Crown or a private individual. Please see…

Ontario (Attorney General) v. Rowntree Beach Assn., 1994 CanLII 7228 (ON S.C.), p. 88 “In Tremblay v. Tay (Township) reflex, (1984), 45 O.R. (2d) 521 at p. 526, 7 D.L.R. (4th) 180, the Court of Appeal said:
“As I remarked during the argument, the objective of the grantor was obvious, but his intention was to be discerned in the first instance from the words he used, and if those are clear and unambiguous (as I think they are) neither resort to canons of construction nor “reading the instrument as a whole” can avoid the rule of law that has prevailed almost as long as there have been law reports—if the habendum is repugnant to the grant, the words of the grant govern.”

And from Supreme Court of Canada, A.G. for Alberta v. Huggard Assets Ltd., [1951] S.C.R. 427
“That conditions must be certain, precise and ascertainable from the terms of the instrument is a rule with ancient roots in the common law; it was applied by this Court as late as last year in Noble v. Alley 14; and a condition, the substance of which lies within the will of the grantor, is outside of that requirement.”

In regards to Beaches, there are in some grants/patents reservations to the Crown for some beach front, whereas in others there are not. It all depends on the grant/patent as each can be different. The following are a few cases that support “private ownership of the beaches”, and it is the grant/patent that determine the ownership. Ontario (Attorney General) v. Rowntree Beach Assn., 1994 CanLII 7228 (ON S.C.), Markesteyn v. The Queen, 2001 FCT 792 (CanLII), Supreme Court of Canada Attorney General of Ontario v. Walker, [1975] 2 S.C.R. 78.

We would also like to bring up Saker v. Middlesex Centre (Chief Building Official), 2001 CanLII 28088 (ON S.C.). In this case a Saker, the private property owner, had 8 acres that he wanted to put through a natural severance by using the Beds of Navigable Waters Act, which would give him 3 acres on one side and 5 acres on the other side. Middlesex Centre used Saker’s Letters Patent against him and the statement section 17 “here, there is an express grant from the Crown of the “land and waters thereon lying”. In short, the Act does not apply. It matters not whether the waterway is navigable since the fee is vested in the grantee.” In this statement the Judge is referring to the Beds of Navigable Waters Act.
The paper also expresses, “all registered land subject to a statutory reservation of any public highway.” Court cases from 1876 and upheld in 1991, “held that the first patentees of the lands received them subject to a statutory reservation and subject to any express reservations of public highways in the patents.”

Again, this would be at the time of issuance. And yet there are court cases from the beginning of this nation to present that support the patentee and the use of Common Law in conjunction with the grants.
Trenton (Town) v. B.W. Powers & Son Ltd., [1969] S.C.R. 584
“A judgment at trial granted a declaration that the respondent company was the owner of certain lands and ordered the appellant municipality to pay damages for trespass. An appeal from the said judgment was dismissed by the Court of Appeal and the municipality then appealed further to this Court.

This was really sufficient to dispose of the appeal. To summarize: Hawley had conveyed Street X long before his plan was registered; the root of title to that portion of Ontario Street shown to be under water on Hawley’s plan is the Grown grant of the 70-acre water lot made in 1876. In 1901 both properties came into the ownership of Gilmour & Co. Ltd., the predecessor in title of B.W. Powers & Son Limited, the respondent.

Rowland v. Edmonton (City), 1915 CanLII 32 (S.C.C.)
“But it cannot be said and maintained that this man formally dedicated this piece of property and nobody can be deprived of his rights without his consent, or without the provisions of the law. There is no consent proved and the law cannot be construed as depriving him of his right in connection therewith.”

Attorney-General for British Columbia and the Minister of Lands v. Brooks-Bidlake and Whitall, Ltd., 63 SCR 466
“Notwithstanding the last mentioned fact or any of those considerations arising out of the ownership of the lands in question and the right of an owner to deal with the lands belonging to him or it, as to such owner may seem fit,…”

The Phinny v. Macaulay was also mentioned in the paper. In Phinny v. Macaulay,[2008] O.J. No. 3629, some of the reasons for the judges decision, in regards to this case, were directed at legal counsel: “his failure to obtain copies of the relevant Crown Patents in a timely manner to permit review and analysis thereof prior to closing, his failure to disclose to…the information contained in the Crown Lands Plan and the Crown Patents and the impact thereof on the first of the two requisitions.”

So let’s deal with the BNA, 1867. There is a lot of reference to Section 92 and subsections 5 which gives the province the “management and sale of public lands and the timber and wood”. Then there is section 92 subsection 13 which gives the province authority over their own property and the ability for the province to protect their property in private civil courts. As Professor Irving stated in 2009. We are repeating this so that you will see that it isn’t our words, but the words of a Professor.

“An appreciation of Canadian federalism requires a brief historic overview of the significance of the concept of “property and civil rights.” The phrase includes all laws governing the relationships between individuals… as opposed to the law which governs the relationship between citizens and government.”

In Supreme Court of Canada, Mercer v. Attorney General for Ontario,
“the “lands” therefore which are referred to in sec. 109 of the British North America Act can only be construed to mean those ungranted or public lands belonging to the Crown.”

…by the 13th paragraph of the 92nd section of the B.N.A. Act, with the power of legislation over “property and civil rights,” it follows that as a consequence all public property, which at the time of confederation belonged to these provinces and which became subject to provincial legislation, must equally belong to them.

No. 5. “The management and sale of public lands belonging to the province, and of the timber and wood thereon,—No. 13. Property and civil rights in the province,” and No. 16. “Generally all matters of a merely local or private nature in the province.” When we come to the clauses relating to “Revenue, debts, assets, taxation,” we find, sec. 102, creation of a Consolidated Revenue fund:—

All duties and revenues over which the respective legislatures of Canada, Nova Scotia and New Brunswick, before and at the union, had and have power of appropriation except such portions thereof as are by this act reserved to the respective legislatures of the provinces or are raised by them in accordance with the special powers conferred on them…”
In regards to the continuing statements referring to “property and civil rights” and the “specific authority to enact legislation I would direct attention to;
The Sale and Management of the Public Lands, 1860 defines Public Lands as:
“Section 38. The term “Public Lands” shall be held to apply to lands heretofore designated or known as Crown Lands, School Lands, Ordnance Lands, (transferred to the Province), which designations, for the purposes of administration, shall still continue.”

Again the above are not our words, but the words of Supreme Court Judges, Professors and the Legislators who agreed to with the Acts and statements.

Then there is the Constitution Act of 1930. This is the amendment to the BNA which brought the Western provinces into the same agreement with the Federal Government as the original provinces at the time of Union:
“Manitoba, Alberta and Saskatchewan were placed in the same position as the original provinces by the Constitution Act, 1930, 20-21 Geo. V, c. 26 (U.K.).

Transfer of Public Lands Generally
2. The Province will carry out in accordance with the terms thereof every contract to purchase or lease any Crown lands, mines or minerals and every other arrangement whereby any person has become entitled to any interest therein as against the Crown, and further agrees not to affect or alter any term of any such contract to purchase, lease or other arrangement by legislation or otherwise. except either with the consent of all the parties thereto other than Canada or in so far as any legislation may apply generally to all similar agreements relating to lands, mines or minerals in the Province or to interest therein, irrespective of who may be the parties thereto.”

“The case of Regina v. St. Catherine Milling and Lumber Company (1886), 13 O.A.R. 148 (SCC).” This case is still cited today, this case has to do with a permit for St. Catherine Milling to cut timber on Native Land. And it confirms that the province has jurisdiction over “Crown/Public Land”, which included “Native land under the protection of the Crown”, not granted/patented land/property. You can also refer to the Crown Lands Protection Act of 1839.

Regina v. St. Catherine Milling and Lumber:
“confirmed provincial jurisdiction over provincial Crown lands located within each of the provinces. The majority referred to the following sections of the British North America Act: No. 5 of sec. 92: “The management and sale of Public Lands belonging to the Province, and of the timber and wood thereon.” No. 13 of sec. 92: “Property and civil rights in the Province.” Section 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.”
The “Trusts” and “Interests” existing means Private Property not belonging to the Crown or the Province. It would seem that the Bar Report is agreeing that the Province only has the control over Public/Crown Property.

Another quote from the paper is in regards to the authority of the Municipalities. “The provinces then delegated authority within areas of their exclusive jurisdiction in the Municipal Act (2001)”. It would seem, that since the provinces only have “authority” over “public/crown property” they can only delegate to municipalities, or any other corporations, “authority” over the “public/crown property” within their jurisdiction.
The Bob Mackie case. This case has been cited time and time again. He was charged by the Niagara Escarpment Act. So let’s be clear about the Bob Mackie case, once and for all. Page 5 Section 20-30
“Mr. Mackie takes issue with the Commission’s view that his use of his property falls outside the purposes of the Act found at section 2 and the objectives of the Act found at section 8. He takes issue with the order from the Niagara Escarpment Commission.

This Court has no jurisdiction to deal with either of those issues.”
The J.P. did not have jurisdiction…plain and simple. Presently, Mr. Mackie is appealing to a court of higher competency.

We hope this has cleared up any confusion, in regards to the Crown Grants/Letters Patent and we encourage everyone to seek out all of the court cases cited and the legislation. This is the only way for one to decide. Unless someone has taken thousands of hours to do the research, read the number of Constitutions, Public Land Grants Act, Real Property Acts, Court Cases, etc., there will be confusion. The information pertaining to these documents has been difficult to find and even those that we would feel should have all of this information, in relation to these documents, have not had the time to fully understand this issue. The Ontario Landowners Association is continuing to research every and all legal avenues, in regards to private property rights, and we will do our best to keep you all updated.

Research Team
Ontario Landowners Association