Do crown patents protect you against government incursions on your property rights?
Tuesday, November 1, 2011
The Ontario Landowners Association thinks they do and a growing number of Ontario property owners are checking out their patents as a consequence
by MARY BAXTER
This year, Shawn McRae bought a high-hoe to do drainage work around his farm. You might think it was a routine acquisition for a routine task. But looks can be deceiving.
Among other things, the Glengarry cash crop farmer plans to use the equipment to do ditch work and landfill on provincially significant coastal wetland. The land is located on 800 acres near Bainsville that has been in the McRae family since 1904.
McRae claims the wetland is artificial, created during the 1800s and 1900s when dams and other measures to improve shipping routes, generate electricity and power manufacturing raised water levels in the Lake St. Francis portion of the St. Lawrence Seaway.
For years, the McRaes tussled with local authorities about the right to use, maintain, develop and improve the area. Sometimes the family won, as in the early 1980s when they reduced a proposed conservation land buffer to 30 metres from 400 metres. Sometimes they lost, as in 1998 when the area was designated as provincially significant coastal wetland. They lost again in 2006 when the United Counties of Stormont, Dundas and Glengarry reaffirmed the designation and nixed the family's ability to sell the land for residential development, even though neighbours with similar land could do so.
"I don't really care if houses are ever built on my waterfront. I simply want the liberty to do it because that's what establishes my property value," says McRae. Higher property value, in this case potentially millions in his estimation, means greater borrowing power. "When that's taken away from me by the government, I'm a pauper."
Now, McRae believes he possesses the ammunition to end government interference on his property permanently: copies of his farm's original patent, complete with wax seals, which were passed to his great grandfather from the descendants of the property's first settlers. Draining the land "was a right that we purchased," he says. "It's written right into the letters patent that we had to clear and drain land, had to build, had to make it useful in order to generate the kind of revenues that the Crown was anticipating."
The 40-year-old farmer is so confident of the patent's ability to trump government limits on his property that he has erected signs warning officials that, if they try to interfere with the drainage work, "I'm going to sue them."
The number of people who, like McRae, believe in the authority of Crown patents is growing rapidly. Over the past two years, requests for patent records in Ontario averaged 200 a month with the bulk coming from the southern portion of the province.
"Prior to that we might average 15 (requests) a month," says Steve Ferguson, a provincial land specialist with the Ontario Ministry of Natural Resources' (MNR) Crown Land Registry. The ministry houses the majority of the patent records in the province.
(The federal government also holds some Ontario records.) Ferguson attributes the surge to a campaign by the Ontario Landowners Association, which advocates for property rights and less government interference.
Two hundred years ago, in what was to become Canada, the patents conveyed land grants to settlers after they fulfilled certain conditions, such as building a dwelling and clearing acreage. Often, the patents contained rights that the Crown reserved on the property, such as public passage on any navigable waters or the right to the woodlot or minerals. (The province continues to issue patents when Crown lands pass into private hands.)
Rights with obligations
There is evidence these historic documents can help settle boundary disputes. The Landowners Association, however, argues that the patents hold an even greater power. Property rights are "a bundle of rights," explains Tom Black, the grassroots organization's president and a beef and sheep farmer west of Ottawa. "It's not just a piece of property; it's your human rights passed down from the Magna Carta," an English charter in 1215 that challenged the monarchy's authority.
With the rights come obligations. "You cannot block your neighbour's water and you cannot flood your neighbour and you can't interfere with his livelihood or his lifestyle," Black says. The association further asserts that government doesn't control private land and an owner retains the patent rights unless they or their predecessors have negotiated changes.
In a recent position paper, the association refers to examples it claims substantiate its vision of property rights. The paper argues that the British North America Act of 1867 (now the Constitution Act, 1867) limits provincial authority to public or Crown property and interests. Any provincial authority over property and civil rights relates only to these as well, although the Act allows the provinces to create contracts and to issue their own Letters Patent.
However, Michael Lamb, a lawyer who has specialized in real estate and is a lecturer at the University of Western Ontario, disputes the Landowners Association's interpretations. "Technically speaking, the Crown owns all the land in its jurisdiction and a Crown grant is saying we're going to let you use this land without any kind of strings attached," he says. The phrase "to have and to hold" often found in Crown patents "is exactly that – just to have it and to hold it. The Crown could take it back."
Lamb owns 40 acres in Middlesex County that he rents to a cash crop farmer. In his municipality, there are concerns that rural residents will be forced to cap private wells and use a new, extended water service. "I can see that as an imposition," he says. But he recommends lobbying rather than acquiring patents to fight the change.
"I think if you try to go the route of saying, 'Well look I've got my Crown patent, you can't tell me what to do,' I think you're dead in the water. You're basically saying to the rest of the community, 'I'll do my own thing, mind your own business.' I don't think that really works too well socially or politically."
Zella Phillips, a lawyer who practices municipal law, recently wrote an article about Crown land patents for the Ontario Bar Association. She emphasizes that the documents are "intertwined with a larger legal framework of constitutional law, statutes, statute interpretations and common law." For property owners to understand their rights, "you need to consider it together with the statutory regime."
The Constitution Act does give provinces authority over property as well as over civil rights, "which is really key because that is their legislative power," she says. In turn, the Ontario government delegates some of that power to municipalities through the Municipal Act. Some of the powers are specific and others are broad, such as permitting municipalities to introduce bylaws to maintain the economic, social and environmental well-being of the municipality.
Tested and upheld
Moreover, Phillips contends that Ontario's right to this authority was tested and upheld in an 1886 court case. At issue was whether the province had the right to authorize the City of Toronto to dispose of land that the federal government had transferred to the municipality via a patent with the condition that it always remains a public park.
The resident who brought the case to court argued that it was beyond the province's legal powers to give the city the right to dispose of the land because the initial patent was under exclusively federal jurisdiction, Phillips writes. However, the province's High Court of Justice concluded that provisions under the BNA Act meant that "the matter plainly fell under the provincial jurisdiction."
Phillips also points to a 2008 Ontario court case that found a solicitor negligent in his efforts to research how the Mining Act of 1869 affected the Crown patent for property his client planned to buy. The case confirms that Crown patents "do not exist in a vacuum," she says. "You cannot interpret them in isolation."
Retroactive legislation, which changes the past legal effect of a past legal situation, and legislation that has immediate application going forward on a past or ongoing situation can affect Crown patents. While courts frown upon retroactive legislation, they tend to regard the other type in a more favourable light "unless it intends to interfere with vested rights," she says. "But even that presumption (assumption) can be rebutted."
One example of legislation that has immediate application going forward on Crown patents is the 1913 amendment of the province's Public Lands Act, which removed the Crown's claim to mining rights on any land patents issued before that date unless the Crown had already transferred these to a third party. (Patents issued after that date "may or may not include the mining rights, depending on how the title is worded," states a 2007 fact sheet from the Ontario Ministry of Northern Development, Mines and Forestry).
In some cases, it is possible to remove historic Crown reservations, says Ferguson. He points to the once common reservation that gave the Crown access to all trees. Landowners can get that demand released by paying the province "the value of timber and trees currently on the property," he says.
Despite arguments to the contrary, Ottawa lawyer Terrence Green remains convinced that Crown land patents do support property owners' rights. He plans to use a Crown land patent to defend his client against a City of Toronto injunction to tear down an addition on the client's home because it was built without a permit. The case will be heard in an Ontario Superior Court of Justice in Toronto in January.
Although he's read a number of cases that have involved Crown land patents, Green hasn't seen anything "exactly on point with the facts of the case that I'm handling, but there are a number of cases that indicate that the rights of the property owner are paramount."
Moreover, he adds, the Municipal Act states that municipalities can make bylaws as long as they do not infringe on superior laws, such as federal, provincial or private property rights. "That to me says a holder of a Crown patent that contains property rights can rely on those property rights in defending an intrusion on those rights by a municipality."
Like Black, he refers to the Constitution Act, arguing that anything that is not listed there as a right of the province should be protected by the Crown patent. There were a number of cases in the 1800s and early 1900s "where Crown patent holders were basically having their rights upheld," he contends.
Asked why the Crown patent hasn't been used to protect property owner rights since then, Green responds: "An individual needs to have his rights trampled on to the point that he wants to stand up and fight back. I think we've now reached that point and people are starting to look at what rights they have as property owners and what the municipalities, the provinces are doing to infringe those rights."
Archery range permit refused
No matter their perspective, those with an interest in Crown patents are paying close attention to a case unfolding in the Town of Lincoln in the Niagara Region involving Bob Mackie, owner of Mackie's Mountain Archery, an indoor and outdoor archery range. He has been charged under the Niagara Escarpment Planning and Development Act with operating the range without the necessary development permit from the Niagara Escarpment Commission.
Mackie applied for the permit but was refused; his nine-acre property is zoned agricultural and an archery range is not a listed activity. "I can have a welding shop here. I can have a tractor repair business here which leaves a far greater footprint on the property than I leave now," Mackie says.
The Commission issued a restoration order in 2007 and, when Mackie didn't comply, charged him in 2009 for contravening the order. During his 2010 trial at the Ontario Court of Justice in Welland, Mackie relied on his Crown patent as a defence, arguing that it allowed the holder to earn a living from the land granted, which is what he was doing, and municipal and provincial laws didn't apply.
According to Phillips' summary of the case, Justice of the Peace Mary Shelley disagreed, citing sections of the BNA Act. She convicted Mackie and ordered him to pay a $15,000 fine. He's appealing the decision in the Ontario Court of Appeal on Nov. 14. The Crown patent will once again play a central role.
Black says that each province could pass legislation to acknowledge the rights represented in the patent. But he doubts there's the political will, no matter the party stripe. "I think they're afraid that they'll lose some of their power," he says. Not only would it mean the loss of some government planning rights, it would also mean compensation for intrusions on privately held land.
He says the Landowners Association has asked property owners to send it copies of their patents. There are no plans for a class action suit, but "if there are enough participants for a constitutional challenge or a legal reference, we might consider it in the future."
In the meantime, Black urges property owners to obtain the patents to determine their rights and what exactly they own. Consider doing a title search right back to the patent, he advises. "We've had people do that and they've got a call from MNR, who said 'we've got bad news, you don't own your property; the Indians own it."
McRae's experiences motivated him to seek an appointment to his local drinking water source protection committee. He wants to help protect others from losing the use of their property under provincial drinking water conservation legislation and regulations.
"It seems these days that, as long as it's for wildlife or an altruistic environmental purpose, you don't have to pay and that's not right," he says. "We've got to sit down and tell the taxpayers of Ontario they can't just take it; they have to pay compensation."
As for his own battle, heading to the courts is not an outcome he relishes. "There's a part of me that wants to lead the way and give hope to people who are in similar circumstances," he says.
"But it scares the shit out of me at the same time because I don't have a budget to beat the municipality and certainly not the province in court if they decide to dig in their heels and make an example of me." BF
how to acquire a copy of a crown land patent record
According to an Ontario Ministry of Natural Resources (MNR) fact sheet, a Crown patent is a document that transfers Crown land into private ownership "subject to any reservations or conditions that patent may contain."
Steve Ferguson, a provincial land specialist with the MNR's Crown Land Registry, notes that the province or its predecessors patented the vast majority of lands in Ontario. But, in some parts of the province, the federal government issued them as well.
Records of patents issued by the province or its predecessors are kept at the ministry's Crown Land Registry. The ministry does not have copies of the patents themselves, but rather keeps records about whom patents were issued to and the reservations and conditions they contained.
Demand for copies of the patent records has surged over the past two years. As a result it can now take about six months to obtain the copy, Ferguson says.
An uncertified copy of up to three pages will cost $32 and a certified copy will cost $50. Each additional page costs $4.
To obtain a copy, contact the ministry's Crown Land Registry at 1-888-551-5552. Request forms are available on the ministry's Crown patent record website:
http://www.mnr.gov.on.ca/en/Business/CrownLand/2ColumnSubPage/STDPROD_088570.html BF