Land patent grants needed: landowners group
Published Saturday, July 9, 2011 3:50PM EDT
A property rights' group in Ontario is urging landowners across the country to get a piece of paper from the government which they say supersedes all government legislation affecting private property.
The Ontario Landowners Association has been running a campaign to convince people to get copies of their Crown patents, a piece of paper issued by the Crown to the original owner of a piece of land, even though the legal weight of those patents is far from clear.
The patents are the latest tool being used by the organization to combat what it believes are unfair government intrusions on private property.
"Our prime goal has been to re-establish property rights," said Tom Black, president of the Ontario Landowners Association. "In that quest we went back to our beginnings, to the land patent grants, and we recognized we basically have that guaranteed to us in the contracts."
One of the main concerns is governments coming onto someone's land to protect species at risk, Black offered as an example.
As the legislation stands now, government employees can come onto a person's property to check for endangered species and designate it as protected wetland in some cases. This results in lost property value, said Black.
The history of the Crown patents dates back to the late 1700s, when the British government officially transferred ownership to new settlers.
The organization's argument stems from the claim that the patents conferred ownership and a certain amount of rights to the original owner and anyone else who would own the property in the future.
They believe the grants, which can be obtained for property anywhere in Canada, void any government legislation that might apply to their properties.
But that view is not held universally in the legal community.
"The problem with the argument that individual property rights are preserved by Crown patent grants is that it misunderstands what such grants stand for legally," wrote Michael Lamb, a University of Western Ontario law professor and an expert on real estate law, in an email.
"They do not transfer ownership of land but only grant the use and possession of the land."
The Crown technically owns all land in Canada, said Lamb. This legal underpinning gives governments the right to assert a certain level of control over people's private property.
In at least one case, a defence using a Crown patent failed to convince the court.
Robert Mackie, a Niagara region man charged with operating an archery range without a permit, argued that his grant superseded all provincial legislation. The court rejected the argument and convicted Mackie, who has appealed the decision.
Regardless of what legal rights the owner of a Crown patent has, there is little doubt the organization has whipped up a frenzy of interest among landowners hoping to get the grant that pertains to their property.
The Ontario government department responsible for processing requests for patent grants has noticed a huge spike in the number of applications in the past year, creating large backlogs and forcing the department to direct more employees to the area.
The department currently has about a thousand open patent grant applications -- a far higher number than they would have had five years ago, said Neil Hayward, co-ordinator of the land, business unit for the Ministry of Natural Resources.
The service used to be mainly a tool for lawyers and government officials, said Hayward. He attributed the increase in applications from ordinary people to the Ontario Landowners Association campaign.
Processing the applications is now taking about six months.
"Typically our turn-around time in the past, before this higher level of interest through the OLA, would have been a couple of weeks," he said, adding that the backlog was previously "nowhere near a thousand."
It's not just rural landowners who are making use of the historical documents as a legal means of stopping government intervention on their property.
Terry Green, an Ottawa lawyer, has applied for a patent on behalf of one of his clients in downtown Toronto. The city is taking his client to court to seek an injunction to tear down an addition she made to her home.
"If it says what I expect it's going to say, I may bring a constitutional challenge to strike down the portions of the Toronto building bylaw that basically infringe my client's rights," he said.
The issue is one of increasing concern for municipalities in Ontario. The Ontario Bar Association published a paper last month, authored by a solicitor with the town of Newmarket, to help municipal lawyers deal with property owners who were using Crown patents to keep governments off their land.
The landowners association is not aiming to make Canada a place where the rule of law no longer exists, said Black.
"We don't want to create anarchy or anything like that," he said. "That's not our intention and it never has been and it's not the reason for this push."
"The reason for this push is to make legislators write legislation that respects the Crown patents, that respects that contract."