WHAT ARE THEY?
Ø  LETTERS PATENT, or Letters Overt [litereae patentes], are writings of the
Queen, sealed with the Great Seal, whereby a person is able to do or enjoy that
which otherwise he could not. They are so called because they are open with
the seal affixed and ready to be shown for confirmation of the authority.
(Dictionary of Jurispurdence, J.J.S. Wharton, Esq., 1847-48, pg. 386)
Ø  LETTERS PATENT: A letter or document from someone in authority (Crown or
Nobility, etc.) used to record an agreement, a contract, a command, endow a
right, privilege, title, property, etc., granting a sole right to something. Also see
Crown land patent: Private property patented land that is privately owned.
http://www.duhaime.org/LegalDictionary/A/AbAbsurdo.aspx
HOW THEY OPERATE
Ø  They are the Honour of the Crown and part of the Royal Prerogative
Ø  Remove the Crown Domain from property/land/real estate, as stated in
the patent, generally “forever.”
Ø  They can only be issued to one person or entity as the Crown /
Legislators cannot "make two men have several plenary rights in the
same thing at the same time, which no law can effect: therefore to do a
thing which no law can make lawful, …“
Ø  They may have reservations to the Crown, such as:
Mines and Minerals
White Pine
Navigable Water Ways Beaches/Flood Plains
Land Use Conditions – see MNR policy PL 4.03.01
CASE LAW
Ø  1994 - “The Queen in right of Ontario has no right, title or interest in and to the
lands described…“ (Ontario (Attorney General) v. Rowntree Beach Assn., 1994)
Ø  Media Report, 2000 - “Public "user rights" over private property only become
legal rights upon a successful application to the court initiated by the Attorney
General.” Midland Free Press, May 19, 2000. Issue #14 (Spring 1999) of The Tiny Cottager) p.
2.)
Ø  2001 - [17] “…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.” (Beds of Nav. Waterways Act) Saker
v. Middlesex Centre (Chief Building Official), 2001 CanLII 28088 (ON S.C.).
Ø  2013 - "The federal Crown failed to implement the land grant provision set out
in s. 31 of the Manitoba Act, 1870 in accordance with the honour of the
Crown.” (Manitoba Metis Federation Inc. v. Canada (Attorney General), 2013 SCC 14)
CANADIAN PACIFIC RAILWAY
Ø  "In 1999, CPR formally began the process of discontinuing rail
operations on the corridor …” “…there was talk of using the corridor
for an urban transit line, but nothing came of it and,…” "The by-law
does not prevent CPR from using its land to operate a railway, the only
use to which the land has ever been put during the history of the
City. " Canadian Pacific Railway Co. v. Vancouver, 1 S.C.R. 227, 2006
Ø  "The grave mistake into which, with all respect, I think the learned
Chief Justice has fallen is, in my opinion, in not reading the
consolidated Railway Act as entirely subordinate to the Canadian
Pacific Railway Act of 1881. "Canadian Pacific Railway Co. v. Major, 13 S.C.R. 233,
Date: 1886-12-07
LETTERS PATENT INCORPORATING THE CANADIAN
PACIFIC RAILWAY COMPANY, 1881
LETTERS PATENT INCORPORATING THE CANADIAN PACIFIC RAILWAY
COMPANY, DATED 16TH FEBRUARY, 1881.
Ø  1. For the better interpretation of this contract…
Ø  14. The Company shall have the right, …, to lay out, construct, equip,
maintain and work branch lines …, to any point or points within the
territory of the Dominion…And the Government shall grant to the
Company the lands required for the road-bed of such branches, and
for the stations, station grounds, buildings, workshops, yards and
other appurtenances requisite for the efficient construction and
working of such branches, in so far as such lands are vested in the
Government.
The reservation / land use condition in the Letters Patent of C.P.R. were
that the company’s property be used “for railway purposes only.”
GOVERNED BY COMMON LAW
Ø  “Again it appears to me to be almost inconceivable that the Crown
should claim the right to do such things as prostrate fences, take
possession of the great industrial works mentioned, or cause any
buildings to be destroyed, without being bound at law to
compensate the owners therefor.” Attorney General v. De Keyser’s Royal Hotel,
Ltd., May 10, 1920
Ø  The Property and Civil Rights Act, ties section 92. 13 of the BNA, and
the Constitution of 1792, which can only be amended by the Federal
Government.
“An act to repeal certain parts of an act passed in the fourteenth year
of his Majesty’s reign, entitled, “An act …and to introduce the English
law as the rule of decision in all matters of controversy, relative to
property and civil rights.” [Passed October 15, 1792]
Thank you.
E. F. Marshall