A while ago, Dee Bartens asked for some research on “in the Province”. Great Britain became the “owner” of certain parts of what is now North America through battles, negotiation and treaties with the original inhabitants. But in order to make productive their acquired holdings, they needed to populate the land with settlers and soldiers loyal to the Monarchy. Much of this settlement came through granting land. In England it was almost impossible for a commoner to own property, so the opportunity to become a landowner in this New World was a very successful strategy to populate North America. Settlers, soldiers and loyalists had to petition the Crown for property, and when granted, the Grantee had to fulfill a number of conditions within a limited timeframe in order to get his grant patented. For settlers in particular, the conditions usually included clearing 10 acres and building a residence of a certain size within a 3 year period. Once completed, the settler would travel to an official post and swear an oath that the conditions were met, and on doing so, Imperial Letters Patent were issued for the granted land. NOTE HERE: the letters patent were granted for the LAND…hence the rights so granted run with the LAND. They were given and granted forever….and only the grantee could then control those rights.
So much of this granting took place prior to 1867, particularly in Upper and Lower Canada. So the grants, on becoming Letters Patent were pre Confederation. There was no Dominion of Canada and there were no Provinces of Canada. The land alienated from the Crown never became part of the Dominion or of the Provinces of the Dominion. Why: Because it had been alienated from the holdings of the Crown by Imperial instruments called Letters Patent.
The grants of land often had reservations…reservations are the “rights” retained by the Crown. In many cases, the reservtions were for the white pine trees, mines of gold and silver, etc. At Confederation, these reservations were passed on to the Dominion or the various Provinces for administration on behalf of the Imperial Crown. So it’s the reservations on our granted land that are “in the Province”. But the granted land and rights that run with the land were never “in the Province”, because the Crown had already alienated those.
The case law created following Confederation seldom dealt with the entire “basket of rights” granted the early settlers. It usually dealt with specific questions that arose, sometimes involving the reservations and sometimes involving the actual property rights. The SCC is a wonderful source of information on the earliest court cases, and that is where most of our research was focused. The first case that clarified the process and rights for me was Robertson vs the Queen. Other very important cases in helping us understand what our pre Confederation grant allowed were Mercer, St Catharines Milling and De keysers’ Hotel.
So what we know now is that if the Province never owned our land, they have no right, title or interest in the same to this very day, UNLESS, the original grantee, heirs or assigns chose to give up some or all of the rights given and granted in the original Letters Patent.
The British North America Act confirms, in Section 109, subsection 13 that the Province has authority over “property and civil rights IN THE PROVINCE”. But understand our land was never in the Province.
And the easiest way to prove that in the province is not a reference to geographic location is to look at military installations and first nation reserves, because although both are geographically located in the Province, they are actually in the Dominion for the purposes of understanding the meaning of BNA. The Province has no say over either. And our land is even more special than that, because our grants are not referred to….they could not be because they had already been granted and alienated and the BNA could only deal with the situation as it existed at the time of Confederation.