Volume 20, No. 2 – June/Juin 2011
Municipal Law Section
Back Off Government: What Municipal Lawyers Need to Know about
Crown Patents
Zella Phillips*
History and Law of Crown Patents: Some Questions and Answers
1) What is the basic historical context for the issuance of Crown grants and patents
in the Province of Ontario?1
In 1763, the Treaty of Paris ended the war between France and England under the Treaty.
The French Crown relinquished any claim to present-day Ontario to England. By Orderin-Council, George III issued a Royal Proclamation, which created four new colonies,
Quebec (previously named Canada), West Florida, East Florida and Grenada, established
governments for those colonies, and dealt with the status of Indian lands in British North
America. In 1774, the British Parliament passed the Quebec Act, 14 Geo. 111 c.83, which
greatly expanded the boundaries of Quebec. The British Crown then commenced efforts
to install settlers in its newly acquired colonies by issuing to them grants of Crown land.
The first Crown patents in Ontario were issued in the 1790s.
In 1791, the British Parliament divided Quebec into Upper and Lower Canada, by the
Constitution Act, 1791, R.S.C. 1985, App. II., No. 3. In 1792, British law was
incorporated into Upper Canada by way of statute. Property rights were clearly a topic of
great concern to the settlers, as the first Act enacted by the Legislature of Upper Canada
provided that, “in all matters of controversy relative to property and civil rights, resort
shall be and to the laws of England as the rule for the decision of same.” The legal
underpinning for Crown patents, as well as the laws governing their validity, derived
from England. In 1839, the imperial government passed the Crown Lands Protection Act,
which made the Provincial Department of Crown Lands responsible for all lands.
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Note: The historical research for this paper has been sourced from Constitutional Law of Canada, Peter
W. Hogg, Carswell, 2000, the cases referred to herein, and the Archives of Ontario website at:
www.archives.gov.on.ca.
1
In 1867, the British North America Act (now renamed the Constitution Act, 1867) was
passed, creating a federal dominion and government for Canada. A number of sections
within the British North America Act deal with Crown lands.
In addition to settlement grants, the Crown granted lands to: (1) veterans of certain
military campaigns, such as the Fenian Raids and the Boer War, (2) railway companies;
and (3) individuals from southern Ireland who required relief from poverty. The Crown
also granted large tracts of land to non-government entities, who then sold those lands to
settlers. The Canada Company, who was granted 2.5 million acres in southwestern
Ontario, and Colonel Thomas Talbot, who was granted half a million acres, are two
examples of private settlement promoters who sold lands in Ontario.
2) How did a settler obtain a Crown grant? What is the difference between a Crown
grant and a Crown patent?
Obtaining ownership of land from the Crown entailed the following three stage
procedure:
In order to obtain a Crown grant, a settler first had to apply to the government by
submitting a formal written request called a petition.
A settler’s petition had to be approved by the Governor in Council which entailed
obtaining an Order-in-Council and Fiat from the Attorney General (later called a
Warrant), and a location ticket before a grant for the Crown land would be issued
to the settler. The grant was essentially permission from the Crown for the settler
to reside on a specific piece of land. The settler still had to fulfill all of the
conditions imposed by the Crown, called settlement duties, before ownership of
the land would officially be transferred by the Crown. The settlement duties
included things such as: clearing the land, putting up buildings, and payment of
settlement fees.
Once the settlement duties were fulfilled by the settler, the Crown issued a patent,
which officially transferred ownership of the Crown land into private ownership.
Patents transferred the land in fee simple to the settler. However, patents were
generally issued subject to reservations and exceptions set out in the terms of the
patent. The Crown often reserved the mineral rights, mining rights, and timber
rights on the land. Patents were also issued subject to conditions, such as land use
conditions.
The issuance of grants and patents both prior to and following Confederation in
1867 was authorized by a series of public land Acts.
The above-mentioned Crown grants and patents were originally authorized by statutes
enacted by the British Parliament. Following Confederation, the government of Upper
Canada authorized/issued grants and patents. This authority was subsequently transferred
to the Province of Ontario. The authorizing legislation included the Public Lands Act
(1853) and (1860), the Mining Act of 1869, 32 Vic (1868-69) CAP XXXIV, the Free
Grants and Homesteads Act (1868), and the Act to Provide for the Appropriation of
Certain Lands for the Volunteers who Served in South Africa and the Volunteer Militia
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who Served on the Frontier in 1866 (1 Edward VII, c.6). The Public Lands Act and
Mining Act continue to be in force and effect, although they have obviously been
amended over the years.
3) Does the Crown have the authority to place reservations, exceptions and
conditions on a Crown patent? How are these interpreted?
Yes. I have not found any cases where this authority of the Crown was disputed.
In Lieding v. Ontario, [1991] O.J. No. 186 (Ont CA), the Court dealt with the issue of the
proper construction of Crown grants. Finlayson J.A. reviewed case law dating from the
1850s onward, and found that the law is as follows:
(a) In the event of an ambiguity, grants from subject to subject are construed in
favour of the grantee, but grants from Crown to subject are construed in favour of
the Crown [emphasis added]; and
(b) There are certain exceptions to this rule, including the exception which permits
construction in favour of the subject where valuable consideration has been given
for the grant.
There is a body of case law on the interpretation of reservations and exceptions to the
Crown in patents where the land contains beaches. An examination of these cases is
beyond the scope of this paper, but the cases include Gibbs v. Grand Bend (Village)
(1996) 26 O.R. (3d) 644 (Ont. CA) and Lanty v. Ontario (Minister of Natural Resources,
[2007] O.J. No. 4289 (Ont C.A.).
4) Are Crown patents issued subject to any restrictions or conditions aside from
those listed in the actual patent?
Yes, there are a number of statutes that contain reservations affecting Crown patents,
such as the Public Lands Act, the Mining Act, and the Land Titles Act (as discussed
below). The Public Lands Act also voids certain reservations contained in Crown patents.
In Beaumaris Fishing Club v. Gravenhurst (Township), [1991] O.J. No. 1427, the
ownership of original road allowances was in dispute. Cavarzan J. relied upon Nash v.
Glover, [1876] O.J. No. 313 (discussed at page 5 of this paper) and noted that the Land
Titles Act makes all registered land subject to a statutory reservation of any public
highway. This was the law in Ontario in 1905 when the Crown patents to the disputed
lands were issued to the private owners. At the time of the first Crown patents, the Crown
owned the lands on which the roadways at issue were constructed and all of the unopened
road allowances in the area. Cavarzan J. 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.
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In Phinny v. Macaulay,[2008] O.J. No. 3629, a solicitor acting for a purchaser of real
estate made a number of requisitions to the vendor. The Vendor responded to the
requisitions but did not provide a satisfactory response to a requisition on whether the
vendor held full fee simple ownership of the land on that basis. The purchaser, on the
advice of his solicitor, refused to close the deal. The purchaser and vendor sued each
other for the return of the deposit and damages. The purchaser cross-claimed against his
solicitor seeking indemnity against the vendor’s counterclaim.
One of the main issues of the case was whether the vendor owned and was able to convey
the full fee simple interest in the land, including the surface rights. The purchaser’s
solicitor had requested copies of the Crown patents, but he initially made the request at
the wrong government office. The solicitor eventually located the correct government
office and made the same request. However, the solicitor did not obtain the Crown
patents until the day of closing. Upon review of the Crown patent, the solicitor noticed a
reference to “Mining” on the Remarks section of the title search abstract page. As a
result, he reviewed the Mining Act of 1869 later that same day. He had previously advised
the purchaser not to close the transaction since the first requisition was not validly
answered. However, the solicitor failed to request an extension of time to consider the
Crown patent and Mining Act of 1869, which he had not received until the day of closing.
After reviewing the patents and mining legislation, he did not obtain nor did he fail to
advise his client and seek further instructions from his client.
The Court held that in order to properly determine whether the lands were being granted
in fee simple along with the surface rights, the solicitor was required to consult the
Crown patents, together with the Mining Act of 1869 and the Crown Lands Plan. On
review of these documents, the Court found that the vendor had owned the fee simple and
surface rights in the property and the first requisition had been validly answered. The
performance of the purchaser’s solicitor was held to be below the level of a reasonably
competent solicitor and his delay in reviewing the patents and Mining Act of 1869 was an
error (among others) for which he was negligent. The damages were assessed at
$469,874.00 minus the purchaser’s deposit. The solicitor was obligated to indemnify his
client for all damages recoverable by the vendors and payment of his client’s deposit.
I have included this case not because of the negligence issue and the resulting fear factor,
but to demonstrate that Crown patents were not issued in a legal vacuum. The reservation
and exception of certain rights, could not be interpreted on the basis of the patent without
regard to any applicable statutory authority.
5) Constitutional authority for Crown lands – Who has jurisdiction? Who can pass
legislation dealing with Crown patents?
The Constitution Act, 1867, (U.K.), 30 & 31 Victoria, c.3 allocated jurisdiction over all
matters respecting Canada to the federal and provincial governments of Ontario, Quebec,
Nova Scotia and New Brunswick. As discussed in the cases below, this Act has been
interpreted to provide provincial legislatures with legislative jurisdiction over Crown
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lands within their respective provinces. The Province subsequently delegated authority to
municipalities to legislate on the matters within their areas of exclusive jurisdiction under
the Municipal Act, 2001.
The case of Regina v. St. Catherine Milling and Lumber Company (1886), 13 O.A.R. 148
(SCC), confirmed provincial jurisdiction over provincial Crown lands located within each
of the provinces. A majority of the appeal judges found that under the British North
America Act that Crown lands within the Provinces were under the exclusive control and
ownership 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.”
In Kennedy et al v. The Corporation of the City of Toronto et al, [1886] O.J. No. 50, the
Province’s ability to enact legislation affecting land that had been patented to the City of
Toronto prior to Confederation was challenged. Ordnance lands (exclusive federal
jurisdiction under s. 91 of the British North American Act) vested in the Crown were
transferred by patent issued by the Province of Canada to the City of Toronto in 1858,
prior to Confederation. The patent was subject to language restricting the use of the
patent as a public park. The condition stated as follows: “Provided always, and this grant
is subject to the following conditions…” In 1876, the Ontario Legislature passed an Act
authorizing the City to lease, sell or otherwise dispose of the patented land. On the basis
of that Act, the City chose to use the patented land as a cattle market and receive rent for
it. A ratepayer brought an action to prevent the land from being used as a cattle market
and to prevent the City from using public money on it. The ratepayer argued that that the
land was granted to the City on the condition that the Crown could retake it and that the
provincial legislation of 1876 permitting the lease, sale or disposal of patented land was
ultra vires as the land was Ordnance land and thus under exclusive federal jurisdiction.
The Ontario High Court of Justice held that the matter plainly fell under the provincial
jurisdiction of sec. 92 of the British North America Act: “Property and civil rights in the
Province”, as the land ceased to be Ordnance land under federal jurisdiction as soon as it
was granted to the City. The impugned Act of the provincial Legislature was
subsequently upheld; and the City’s actions were confirmed?
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Finally, there are a number of cases dealing with Crown patents and highways. While
they are beyond the scope of this paper, it is worth noting that the case law has
established that an original road allowance cannot be extinguished except by proceedings
under the relevant Municipal Acts. Those Acts take precedence over a grant by the
Crown . Nash v. Glover, [1876] O.J. No. 313.
6) Once a Crown patent has been issued, can it ever be revoked or voided? Who has
decision making power when there are disputes over patents?
Section 23(1) of the Public Lands Act empowers the Minister of Natural Resources to
cancel a patent. If the Minister is satisfied that a purchaser, locatee or lessee of public
lands, or any person claiming under or through a purchaser, locatee or lessee of public
lands, has been guilty of fraud or imposition, or has violated any of the conditions of sale,
location or lease, or of the licence of occupation, the Minister may cancel such sale,
location, lease or licence, and resume the land and dispose of it as if the same had never
been made, and upon such cancellation all money paid in respect of such sale, location or
lease remain the property of the Crown and the improvements, if any, on the land are
forfeited to the Crown.
Section 22 of the Public Lands Act empowers the Minister, and not the Courts, 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 and the Minister’s decision is final
and conclusive. These longstanding statutory powers date back at least as far as 1897.
In Fitzpatrick v. R., [1926] O.J. No. 38, the Ontario Supreme Court, cited a provision
almost identical to section 22 of the Public Lands Act, R.S.O. 1897, ch. 28. The Court
held that the Legislature, in giving the Minister jurisdiction to determine finally all
questions which arise as to the rights of persons claiming patents, could not have
intended the Court to also have jurisdiction over the matter. As a result, the Ontario
Supreme Court had no jurisdiction to determine the question as to the claimant’s right to
the patents claimed or to interfere with the Crown’s exercise of its discretion in the
disposition of Crown lands. The petition was dismissed.
In the 2000 case of Mosher v. Ontario, [2002] O.J. No. 170 (Ont SCJ), concerned a
dispute over whether the Crown should have issued a patent to the claimant. McCartney
J. held that section 22 of the Public Lands Act was a complete defence to the claimant’s
action against the Crown.
In Chippewas of Sarnia Band v. Canada (Attorney General) (2000), 51 O.R. (3D) 641
(Ont CA), the Chippewas pursued a number of private and public law remedies to
address the issuance of an allegedly void Crown patent of lands they claimed as their
own. The Chippewas filed a Statement of Claim against the Crown in Right of Canada,
the Crown in Right of Ontario, and all present landowners on the disputed lands. The
Crown brought a motion for summary judgment and the Chippewas brought a cross
motion. The reasons of Campbell J. on the motion at the Superior Court of Justice did
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not make any reference to the Minister’s final and conclusive powers under the Public
Lands Act. The Minister’s powers were not referred to anywhere in the reasons for
decision of the motion’s judge. The Chippewas claimed ownership of a parcel of land
located at the rear of their reserve. The disputed lands were occupied in the present day
by over 2,000 different individuals, organizations and businesses, all of whom traced
their title back to the Crown patent at issue. The Chippewas argued that because they had
never surrendered the disputed lands to the Crown in advance of the patent being issued
as required by the Royal Proclamation of 1763 and common law, their interest in the land
was never extinguished and the Crown patent issued in 1839 was void.
The motions judge issued a declaration that the Crown patent was void ab initio and of no
force and effect because there was no lawful surrender. Although the Chippewas were not
entitled to a declaration of possession of the disputed lands, their action for damages
against the Crown was permitted to continue. A declaration was also issued to the effect
that the present day landowners held their title free and clear from any aboriginal title
claims, as they were good faith purchasers for value without notice. The decision on the
motion was appealed and cross-appealed.
The Court of Appeal reversed the decision and declaration of Campbell J. that the patent
was void ab initio. The Court of Appeal agreed that there was never a proper surrender
of the lands. However, it overruled the motions judge as to remedy. The Court of Appeal
placed great emphasis on the pivotal role of patents in land transactions, and was
unwilling to set aside the disputed patent to the detriment of so many future innocent
purchasers. It stressed the fact that the patent was in the usual form and valid on its face,
stating at para 248:
The patent was issued as an exercise of Crown prerogative. The issuance of
Crown patents to land was a routine governmental act. A Crown patent has been
accepted from the earliest days of European settlement until the present as the
foundation for title to land. For almost 150 years, successive purchasers have
bought lands that were included in the Cameron patent without having any reason
to suspect that the patent, and consequently their root of title, was in any way
defective.
The Court of Appeal held that there were exceptional circumstances present that
compelled the Court to withhold a remedy that would vindicate aboriginal title. The
Court determined that the interests of the innocent third parties who had relied on the
apparent validity of the patent must prevail over the Chippewas’ entitlement to a remedy
that would set aside the Crown patent. However, the Chippewas’ claim for damages
against the Crown was permitted to continue.
7) How does the existence of a Crown Grant or Patent of Land affect a municipal
lawyer’s practice?
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The Ontario Landowners Association (“OLA”) has recently sent letters to various
municipal governments in Ontario asserting their rights to be protected from “any
interruption, intrusion, legislation or regulation…as supported by the authority of the
land/property owner’s Crown Land Patent Grant”. The OLA appears to be taking the
position that because they hold the Crown patents to their lands (which they refer to as
Crown land patent grants), legislation and municipal by-laws that would otherwise apply
to their lands are inapplicable. Some excerpts of the letter are below:
The recent case of Her Majesty the Queen v. Mackie heard July 29, 2010, in Welland,
Ontario Court of Justice before Justice of the Peace Shelley, involved a prosecution
before the Provincial Offences Court. The defendant, Robert Mackie, was charged with
operating an archery range on his property without a permit, contrary to the Niagara
Escarpment Planning and Development Act. The Niagara Escarpment Commission
issued a restoration order to Mr. Mackie, who failed to comply with it. His defence at
trial echoed the position of the OLA; that provincial legislation is not applicable to
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property that has been patented by the Crown. He provided a copy of the Crown patent
issued in 1798 for his lands to Justice of the Peace Shelley and claimed that the patent
was issued to the patentee to earn a livelihood from the land. As he earns his livelihood
from the archery range on the land, he argued that municipal laws and regulations,
including the Niagara Escarpment Planning and Development Act, do not apply to his
property. The Crown patent granted the land to the patentee forever to have and to hold,
and as a contract with the Crown, it superseded all provincial legislation.
The Court disagreed with this position, citing the fact that under the British North
America Act, (renamed the Constitution Act of 1867), the provinces were given specific
authority to enact legislation. Subsections 92(13) and (16) of the British North America
Act provide legislative authority to control the use of land belonging to the province. The
defence failed and Mr. Mackie was convicted. He has appealed the conviction and has
received much support from the OLA in the media, including on their website.
8) Final thoughts
As I have tried to illustrate in detail, Crown patents are complex documents that play a
paramount role in the province’s land registration system. They do not, and never have,
existed in isolation. They were (and continue to be) intertwined with a larger legal
framework of constitutional law, statutes, statutory interpretation principles, common
law, history and real property law. The meaning accorded to the rights and obligations
granted to a landowner in any Crown patent is tied to and affected by a host of statutes
and other forms of government action. As a result, the rights and privileges set out in any
particular patent must be considered together with the applicable statutory regime in
order to understand the property owner’s actual rights.
Zella Phillips, Associate Solicitor, Town of Newmarket*
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