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Simple answers to Complex Questions and Complex Answers to Simple Questions. In real life, I'm a Greater-Toronto (Canada) Realtor with RE/MAX Hallmark Realty Ltd, Brokerage. I first joined RE/MAX in 1983 and was first Registered to Trade in Real Estate in Ontario in 1974. Formerly known as "Two-Finger Ramblings of a Forensic Acuitant turned Community Synthesizer"

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Friday, October 05, 2007

If the Crown "owns" the Land, then who/what "owns" the Crown in Canada?

Mr Corcoran,

While this is much longer than the punchy 3 paragraphs I started to write (in an effort to at least get you to read it), I think it's still no longer than it needs to be.

Your piece today, Render not unto Caesar, brings up my favourite Canadian anomaly -Who owns the Land in Canada? - and its corollary (after the first query is promptly answered "The Crown"), Who/What is the Crown in Canada?

In your column, while denouncing the Alberta government's thoughts about changing the rules (again) in the middle of the game, you quite correctly say:

"These freehold lands, the result of the evolution of land allocation through Canadian history ....

Alberta historian and author James Gray, in his book Troublemaker!, writes that after Imperial found oil at Leduc in 1947, "the lucky farmers who had their oil rights were able to set themselves up for life with the cash bonuses and royalties they got from the oil companies. Across the road, their neighbours on land for which the government retained the mineral rights were lucky to get a few hundred dollars compensation for the damage done by a drilling site on their land."

In earlier days when Canadian governments granted land to homesteaders and others, including the CPR, the owners assumed both surface rights and sub-surface rights. Over time, in Alberta, the government came to control 81% of mineral rights (Ottawa and native bands control the remainder). But governments did not come to own resources by any natural right. They took it -- through legislation, federal-provincial agreement and other means."

At bottom (and with no disagreement or disrespect towards the point you make re: the unwieldy & profligate management of resources {ed. and everything else they touch} by governments on behalf of "the people") the issue is the absolute nescience of ordinary Canadians regarding their constitutional place and role within the country's sovereignty.

Nescience (no knowledge) is a better term than ignorance (should/could know but turn away from examining) because we have been collectively swaddled, insulated and 'protected' from examining the essential facts by the very entities that benefits from its non-examination.

Unlike the evolution of land allocation, Canadian sovereignty never evolved.

But, just like Tiberius Caesar, the 1763 British Proclamation established/declared sovereignty (& land ownership as we non-autochthonous folks know it) in the Crown. Unilaterally, they declared their ownership as a legal fact then and it remains true today ... until someone/something takes it over by conquest or otherwise.

The UK Crown (more accurately called UK Crown-in-Council) parceled out the land in innumerable fee simple (a.k.a. freehold) grants - the evolutionary allocation to which you refer - which lead to the settlement and development of the huge land mass into what we know now.

Sad but true, the fee simple 'estate' is not absolute, it is but an 'interest' in the land. We know it as the highest form of ownership available to Canadians (vs leasehold 'interests', life estate 'interests' etc etc), but it is not " allodium".

Now while our land was not granted in Canada as an absolute ownership interest by the UK Crown in Council (i.e. the UK Privy Council decides and the Monarch is obliged to rubber stamp with the proviso that if an error is made/uncovered the Minister or Ministry will take the responsibility for that bad advice and resign), they did ensure that marvellously complete and accurate records of these transactions were kept (and why not, they were actually keeping track of the Crown's own interest in those lands)

As a result of our colonial/feudal system never having been fundamentally changed - the Crown still owns everything in Canada (not just the land), save a few time-limited copyrights & trademarks (and of course the never-Treatied Aboriginal lands + the poorly-honoured and never-honoured land claims being readied for presentation once the "solid" claims set the precedents).

But this is not my point, just the pathway.

If the Crown is still at the root of every land title and in light of the U.K. legislation than enacted the Constitutional changes in 1982 that removed the UK Privy Council from the power & influence hierarchy in Canada - stripping the functionally-proper "in-Council" from the above-mentioned 'accurate description' of the Crown in Canada, then Who/What is the Crown in Canada today?

The only answer again is the Monarch.

But since no one expects (or would likely tolerate) any unilateral, Executive action by HRH Queen Elizabeth the 2nd as an individual, it behooves us to examine where that power (to advise the Crown) went in 1982, who/what filled the power vacuum created by the removal of the UK Privy Council and (more importantly) what was their/its authority to do so?

Welcome to the practical side of Wm Lyon Mackenzie's seance-filled administration.

Far earlier than 1982, the Rt Hon Mr King (as head of the lowest order of Constitutionally entrenched Dominion powers) usurped by stealth control over his order's two constitutionally superior levels of governance - the Privy Council and the Office of Governor General - and in so doing subsumed the power of those offices. A unification it might be termed, but in fact it was (and is) an un-constitutional consolidation of power in diametric opposition to the intentions, purposes and as-written provisions of the BNA Act 1867.

However, understanding that the de facto system of government in Canada is at odds with the de jure and as-written system is essential if one wishes to answer the question of who/what filled the power vacuum created by the removal of the UK Privy Council from the Canadian Constitution.

The de jure answer is nobody filled the void. Constitutionally the Monarch is still advised by Her Governor General and Lt Governors and those individuals are advised, respectively, by the Privy Council and their Executive Councils.

When in 1940 (under cover of the war effort) Mackenzie King appointed his principal secretary to also be Clerk of the Privy Council , King effectively took over the S.11 independent advisors of the Governor General making the PM & his Cabinet the ONLY source of advice for the (still superior) holder of the Office of Governor General. Phase two involved King successfully lobbying to have 'a Canadian' (on recommendation of King and then subsequent PM's) appointed as Governor General. With a grateful toady as Governor General and that poor, super-elevated soul with no independent advisors, King completed in his revenge on Lord Byng - he dispatched (as thoroughly as any coup or purge) his office's Constitutional superiors.

Which brings us to the de facto answer: the Prime Minister of Canada's Lower House.

Only in Canada, you say ..... Pity.

Yes, in Canada the carefully laid out, written provisions established to ensure that no one person could become too powerful are not being followed. The original scheme to allow a "democratic element" a la Responsible Government to initiate Bills (esp Money Bills) and then to have those initiatives vetted by an esteemed group of property-owning, net-wealth possessing and constitutionally superior legislators (drawn with equal number from the 3, then 4 divisions/regions) and then to have any Bill that was agreed by those two (often with opposing interests) bodies, approved (or, not approved, or reserved for UK further consideration) by the Monarch's own local appointee (after having the opportunity to hear what His Own independent appointees thought about the Legislative order's idea) AND THEN to reserve a Veto (S 56 Disallowance) of ANYTHING & EVERYTHING by the UK Crown-in-Council within the subsequent 2 years.

All of those meticulously calculated checks and measured balances ... out the window.

The Governor General's veto ... gone.

His Independent advisors (Privy Councillors need not be elected, nor Senators to serve the GG) ... gone.

As a quite independent development and by other means albeit to the same ends, (inflation undermined the $4,000 qualification & cronyism undermining the rest of it), the Senate's role representing the propertied class and as ' a bulwark against the clamour and caprice of the mob' ... gone.

All the as-written, still-legitimate-but-ignored provisions to keep a bunch of short-term thinking, pander-to-the-folks in MY riding (or the riding we might win next time) from spending money, stealing rights, un-equally elevating/favouring one set of voters' interests above another's, creating self-serving power structures and administrative fiefdoms ...gone.

All the opportunities for a) the Senate, b) the Privy Council & c) the Governor General to just say NO to i) an arbitrary legislative or 'in-Council' action, ii) an agenda-fulfilling spending (or 'tax-expenditure') initiative, iii) a perk for the cabal behind party-machine, iv) a bill that entrenches more-control-for-incumbents over the election process, by a power-crazed zealot who had managed to buy enough votes and/or fool-enough-of-the-people in just 50%+1 of the (gerrymandered as well as anybody) ridings to become PM over the government of the day ....gone.

Our PMO/PCO within the unconstitutional de facto government IS the Crown and they were never supposed to be.

The Crown is supposed to be the benevolent autocrat of ancient philosophers - the benign yet all-powerful overseer who cannot initiate, but can veto. The powers of the office of UK Crown (aka Crown in Canada) are delegated, some on paper in the BNA Act and some on pleasure, to the Governor General. The holder of THAT office is supposed to be that watchful-for-all-Canadians, long-term thinking philosopher-king. Someone to act with wisdom, honour and justice for all of us. Someone to stand against the petty, the self-serving, the personal/regional aggrandizement that often flows from human beings in a position of power.

To me an political epiphany is necessary in Canada. As in the Emperor's New Clothes, some little child must say "They aren't following the Constitution" and enough scribes and forensic notables must say "T'is true, we failed you - we'll change our own selfish ignorance of those facts and force the legislative power back into its place"

How? Elect the Governor General. Armed with a popular mandate, but no new powers, THAT person can inform the public of how to re-establish the Senate (adjust the $4000 qualification for 100+yrs of inflation and grandmother/father no one) and how to sever the Privy Council from the PMO (simply rescind Order in Council PC 1940-1121) and let the newly-quickened citizens demand the changes.

With an elected Governor General overseeing, a re-constituted Privy Council and Senate counselling and a House of Commons where being PM doesn't make you the de facto king/queen of the country, perhaps we can make some headway on making the 21st Century belong to Canada.

With an elected Governor General the land ownership issue (more exactly the abuses of the Crown's power over/under that land and its interest-holders, by the stewards of the Crown) almost goes away - with no slave master changing the rules all the time, the serf/citizens are automatically more free. Nothing much will change to anyone's detriment - we still have a super-abundance of laws and regulations in place to keep the citizens from getting unruly or endangering one another.

At the time we accomplish all of the above we can have a discussion on 1) whether the Crown's ultimate title in fee simple/freehold should be sold, mortgaged (proceeds received from either would eliminate all government debt and maybe all its varied contingent liabilities) or given away to the registered owner and 2)whether the existing Crown land should be sold, mortgaged (proceeds as above) or held in trust for the benefit of all Canadians (a la Alaska, and ?Norway?Sweden?) and NOT be further wasted as a play-thing of the gov't of the day (a la Alberta's Heritage fund).

While this is much longer than the punchy 3 paragraphs I started (in an effort to at least get you to read it), I think it's still no longer than it needs to be.

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