Real Property

Saskatchewan's land holding system, as with all of English Canada, grew out of English roots. The Norman monarchs from 1066 took the position that all land was owned by the king, with a fee simple estate the largest interest the Crown would grant while retaining to itself some rights to the land. This premise continues today and manifests itself in the Crown's right to expropriate as well as in escheat laws, whereby if there exist no will and no heirs, land reverts to the Crown. This is the source of the term “the Crown has underlying title” in all the land in Saskatchewan. In the colonial expansion of the 17th century, the British Crown asserted sovereignty over the land now comprising Saskatchewan as part of Rupert's Land, defined as the watershed of the rivers flowing into Hudson Bay. By Royal Charter of 1670, England's King Charles II granted Rupert's Land to the Hudson's Bay Company in fee simple, including governance rights (Charter of the Hudson's Bay Company, 1670 (U.K.), 22 Charles II, c.2). In the 1700s, both French and English fur traders moved inland.

Nearly a century later, the 1763 Treaty of Paris (Definitive Treaty of Peace between France, Great Britain and Spain, February 11, 1763, 42 Cons. T.S.320) allocated northwestern North America to the English. England issued the 1763 Royal Proclamation declaring that only the Crown could buy land from the Indians who inhabited the west. (Royal Proclamation of 1763, October 7, 1763, (U.K.), Privy Council Register, Geo.III, Vol.3 at 102). After the formation of the Dominion of Canada in 1867, Canada passed the Rupert's Land Act 1868 (31-32 Vict. c. 105.) to purchase Rupert's Land from the Hudson's Bay Company for £300,000 plus future land rights. The lands were formally conveyed to Canada by imperial order in 1870 (Order of Her Majesty in Council Admitting Rupert's Land and the North-Western Territory into the Union at the Court of Windsor, June 23, 1870, P.C.1879, S.C. 1872, p. lxiii).

In 1869-70, resistance to Ottawa's preemptory actions concerning western lands led to armed struggle, known as the “Red River Rebellion” or “Red River Resistance.” The settlement of this conflict involved the creation of Manitoba as a province in 1870 (The Manitoba Act, S.C. 1870, c.3), with much smaller boundaries than at present. In 1871, the British North America Act, 1871 (34 & 35 Vict. 29 June 1871 - now called the Constitution Act, 1871) authorized Canada to make provinces out of territories. Between 1871 and 1877, Canada negotiated seven major treaties with Aboriginal tribes in the North-West to open western lands for settlement. (Another numbered treaty, Number 10, covered land in the northern part of the province, but was not signed until 1906.) The English version of the treaties read that the Indians agreed to “cede, release, and surrender” the land, but differing interpretations of this phrase are the source of tensions that continue to the present. In 1992 the governments of Canada and Saskatchewan and the Federation of Saskatchewan Indian Nations agreed on a “Treaty Land Entitlement Framework Agreement” to address unresolved land claims arising out of the numbered treaties.

The Dominion Lands Act, 1872 (An Act respecting the Public Lands of the Dominion, S.C. 1872, c.23, s.10) established the present survey system, based on the American model of quadrilateral sections, ranges and townships (An Act Concerning the Mode of Surveying the Public Lands of the United States. (a), U.S.C. s.1, 1805). The township is the basic unit, six miles by six miles square, divided into 36 sections. Each section is one square mile, containing 640 acres and further subdivided into quarter-sections of 160 acres. The first meridian is just west of Winnipeg, marked by a monument on the Trans-Canada Highway; the second meridian is just west of the Manitoba border in Saskatchewan; and the third meridian is in western Saskatchewan. Homesteads were identified by “land location”: e.g., NW1/4 25-15-10-W2 means northwest quarter of Section 25, Township 15, Range 10, West of the 2nd Meridian. The Hudson's Bay Company was granted Section 8 and three-quarters of Section 26 (and all of every fifth section 26) in surveyed townships as part of the 1870 purchase price. Sections 11 and 29 in each township were reserved as school lands to be sold as revenue to fund education. Canada offered free homesteads of 160 acres for anyone who would break the land and live on it for three successive “six-month years” (meaning six months within a calendar year) (Dominion Lands Act, 1872, s.33.) Later, 25 million acres were granted to the Canadian Pacific Railway as part of government grants to build a transcontinental railway to join British Columbia, and thus to carry settlers and manufactured goods to western Canada and return grain for export.

The land-holding system consisted of a Crown grant of land and issuance of a patent for the grant. The patent was registered and a title created. In 1878 and subsequent years, the North-West Territories Council enacted ordinances requiring the registration of all instruments related to land (An Ordinance Respecting the Registration of Deeds and Other Instruments Relating to Lands in the North-West Territories, C.O. 1878, An Ordinance to Extend and Amend the Registration of Titles Ordinance, C.O. 1881, an Ordinance to Further Amend “The Registration of Titles Ordinance 1879”. An Ordinance to Amend and Consolidate, as amended, the Registration of Titles Ordinance of 1879, and the Ordinance Amending it, C.O. 1884). In 1886, the North-West Territories Act, R.S.C. 1886, c.50 adopted British law as of July 15, 1870, in the Territories. English law continues to apply today, unless overruled by a Canadian or provincial statute. The Act also gave the Territories control over property and civil rights (s. 13(9)), except that control of “land” was retained by Canada for national policy settlement purposes. The Torrens system of land registration was introduced effective January 1, 1887, through the Territories Real Property Act, 1886 (An Act respecting Real Property in the Territories, S.C. 1886, c.26; R.S.C. 1886, c.51.). The Torrens system was developed by a customs officer in Australia, designed to simplify and expedite land transactions. The system was based on “indefeasibility” of title, meaning that the registered title is guaranteed by the state as being a valid record of the interests in the land, avoiding the need for verifying the contents of any land document that had characterized the British system. The details of the system were formalized in the Land Titles Act 1894, 57-58 Vict., c.28. Most landowners in Saskatchewan during the 20th century at one time or another visited the “Land Titles Office” in Humboldt, Regina, Moose Jaw, Saskatoon, Yorkton, North Battleford, Swift Current, or Prince Albert.

Beginning with an Order-in-Council in 1887, Ottawa reserved mines and minerals to the Crown. Titles issued before this policy were called “freehold,” passing mineral rights to the landowners; after this policy, most titles reflected the words “minerals in the Crown.” In 1898, Ottawa also vested all water in the Crown with the North West Irrigation Act 1898 61 V. c 35. In 1905, Ottawa divided the North-West Territories into the provinces of Alberta and Saskatchewan. Unlike the situation with respect to the first four provinces of Confederation, Ottawa retained jurisdiction over Crown land, providing the provinces with subsidies “in lieu of public lands” (An Act to Establish and provide for the Government of the Province of Saskatchewan, 4-5 Edward VII, c.42. [The Saskatchewan Act, 1905] An Act to Establish and provide for the Government of the Province of Alberta, S.C. 1905, c.3). S.21 of the Saskatchewan Act reads: “All Crown lands, mine, minerals, and royalties, and interest in water under the North West Irrigation Act 1898 are vested in the Crown and administered by the federal government.”

In 1930, the federal government released control of Crown lands to the provinces of Saskatchewan and Alberta in the Natural Resources Transfer Agreement (Constitution Act, 1930, R.S.C. 1970, App.II. No.25). The Provincial Lands Act S.S. 1931, c. 14 provided the framework for provincially held land, including leased land for mineral and forestry development, and ranch land. The federal government created the Prairie Farm Rehabilitation Administration (PFRA) to assemble land that had proven unsuitable for cultivation during the Depression and create a network of Community Pastures (Prairie Farm Rehabiliation Act, S.C. 1935, c.23). In 1982, the Constitution of Canada enshrined provincial jurisdiction over specific aspects of non-renewable natural resources, forestry resources, and electrical energy (Constitution Act, 1982, s.92A). The Land registry system continued intact in all its major principles throughout the 20th century. In 2001, the Act received a major overhaul as the paper-based title system was transformed to a computer-based registry system, in the Land Titles Act, S.S., 2000 c.L-5.1. This new system integrated land survey and land titles registries, providing Internet-based land survey examination, title registration, and an integrated spatial database (GIS).

Marjorie L. Benson, Don Purich