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Related Articles and Documents

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Back Off Government: What Municipal Lawyers
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Regulatory Takings in Canada
 
Crown Patents- I Wish It Were True


Dear friends in the Landowners;

There has been much written and said regarding Crown Land Patents, but most, if not all, that you have heard is either false or misleading. As the founding President of both the Lanark and Ontario Landowners, I feel I have an obligation to caution you regarding much of the information that is out there, and provide you with some facts and informed positions on Crown Patents.

Below are three informed, factual accounts of Crown Patents from respected people.

- Randy Hillier


Septembar 2012 Update:
Glengarry Landowners' Association (GLA) has removed itself from the Ontario Landowners' Association (OLA)

August 2012 Update:
Kurtis Andrews and Randy Hillier speaking at Glengarry Prescott & Russell public landowners meeting
AgriNews - Bowes bows out of OLA
Ian Cumming spells out a Patented Failure
Ottawa Citizen - Randy Hillier keeps his eye on the goal
Glengarry News: Landowners v.s. Crown Land Patents

July 2012 Update:
Robert Mackie Court decision. Note sections 23 & 24
Hillier splits from property rights group - Ottawa Citizen
Lake 88 Interview With Randy Hillier - July 13, 2012


There has been a great deal of recent discussion, debate and opinion expressed about the legal implications respecting Crown Patents. A number of people have suggested that property rights are protected rights pursuant to a Crown Patent, unless such rights were expressly reserved (withheld) at the time the Patent is issued.

I have spent a great deal of time carefully examining the relevant legislation and case law associated with Crown Patents, and property rights in general, and have come to a different conclusion. As a lawyer who is often faced with
circumstances involving honest and decent people, being subject to an unfair deprivation of their property rights, I wish that Crown Patents could provide a solution.

Unfortunately, I do not agree that property rights are preserved and protected pursuant a Crown Patent, and the contents of Crown Patents have relevancy in regulatory defenses only in the rarest of situations.

Click the links below to read two more documents that dispel the Crown Patent myth

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


Regulatory Takings in Canada


We have only one supreme law in Canada - the Constitution (a.k.a. the Constitution Act, 1867, formerly the British North America Act, 1867, and the Constitution Act, 1982, which includes the Canadian Charter of Rights and Freedoms). All legislation passed in Canada must conform to the Constitution. Section 92(13) of the Constitution Act, 1867, specifically confers jurisdiction over "Property and Civil Rights" to the provinces. In other words, the Provinces are specifically granted powers to pass laws which affect property and associated rights.

Nowhere in the Constitution are private property rights guaranteed - which includes rights associated with Crown Patents.

This assessment of the Constitution should be not taken to mean that its wording is perfectly clear and unambiguous. Some sections of the Constitution appear to indicate that various rights held by private individuals must be honoured at the time when the Dominion was formed. Such rights, however, pertain to "trusts" and "interests" associated with public lands (e.g. timber and mining contracts).

Other sections appear to guarantee the maintenance of agreements/contracts to transfer property from the Crown to private individuals; however, the same sections also state clearly that such guarantees are subject to "any legislation [which] may apply generally to all similar agreements relating to lands".

In other words, Provinces are permitted to pass legislation to further limit property rights, beyond reservations already provided in a Crown Patent, provided that the law applies generally to the public at large.
Of course, we all know that many laws, which supposedly apply to all Ontarians, only truly affect a relatively small class of citizens - e.g. farmers. Although these laws seem unfair and are difficult to shoulder by those affected, the Constitution does not, generally speaking, expressly protect against such laws. (Note: section 7 of the Charter, "the right to life, liberty and security of the person" may provide some protection under the right circumstances)

Another misconception which has arisen in the course of Crown Patent discussions involves the status of the Common Law relative to Statutes. To be clear, the Common Law does not trump Statute.

The Common law is ever evolving and changes /strengthens /weakens, with respect to peoples' legal rights, with every decision of a Canadian Court. Fundamental principles of property law, as well as contract, tort and other areas of law, are grounded in the Common Law.

However; there is no question that Statutes may abrogate principles of the Common Law.

In other words, our legislators may pass laws which have the effect of over-riding the Common Law. It happens all the time with respect to property rights. It also happens with respect to torts (e.g. the Trespass to Property Act) and Contract (e.g. elements of the Residential Tenancies Act) and many other aspects of the Common Law. The paramountcy of Statute also permits the very existence of the Criminal Code - which, of course, authorizes the State to restrict a person's most fundamental rights - including the right to be free from incarceration.

Without a system where Statute overrides the Common Law, we would be subject to laws determined by unelected judges, rather than the elected representation we have in Canada.

This is not to say that Statutes can only serve to take away our rights. The Charter is an example of Statute which guarantees rights - although it does not expressly include property rights. Other legislation, without the same supremacy as the Charter, can have the effect of protecting property rights. Ontario's Expropriations Act is an example - although case law shows that the Act rarely protects against losses stemming from regulatory restrictions on property rights.

In other words, the Courts appear to be content with allowing a gradual chipping away of rights - or death by a thousand cuts. (Note: depending on the degree and affect of a loss of property rights, a remedy may still be available through the Charter and /or provincial legislation - but it would be an exception, rather than the rule).

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