Comments to Province re…

Comments to Province re Niagara Escarpment Plan (NEP)

The key issue with the NEP is the underlying assumption, by the Government of Ontario, that it has the right to impose its will upon private property owner. To dictate what property owners can, or can not do on their land and further, that the province has the right to access upon private property, to conduct searches without a search warrant.

The problem for the Province and hence its NEP, is that the Province is subject to the Canadian Constitution Act 1867, section 109 .

A large amount of the NEP designated area is private owned lands which ownerships are based on pre confederation crown grants, and land patents. These grants/patents established and defined the land ownership right of interest running with the land , which the Crown, at its own prerogative, gave to the property owner’s.

These rights were registered on title.

So when we look at what is in or outside of the authority of the Province, the Canadian Constitution Act 1867, section 109, states in matters of land ownership “the province is subject to any trusts existing in the respect thereof, and to any interest other than that of the province in the same “

Effectively, as almost 100% of the private owned lands within the boundaries defined by the NEP, are owned based on pre confederation Crown Grants and further have registered “land patents, the Province must legally recognize and respect that these grants and patents as being interests other than that of the Province, and thusly, outside the authority of the Province to dictate.

As such the province must respect the property rights these grants give the the property owners in any and all legislation or regulation the province enacts.

Simply put: If private owned property is based on a pre-confederation Crown grant, registered on title under the seal of the Crown , seal of Upper Canada or seal of the Province of Canada; the Province of Ontario is bound to honour the private property rights these Grants, or registered land patents give to the property owner.

Similar to federal owned lands within the boundaries of the Province being exempt from Provincial interference , so too are the private property lands that were established at the prerogative of the Crown through Crown Grants and Land patents.

In so far as the NEP places restrictions on private owned land and compels compliance with legislation and regulations, which are outside the authority of the Province to legally enact upon private property where the property root of title is a pre-confederation Crown Grant, the NEP is ultra vires when it comes to these identified private owned lands

The NEP needs to be revised to include a clear statement that “permitting and/or enforcement” within the NEP must recognizing that private property owners with property title based on a pre-confederation grants are outside the authority of the NEP. Further more the members of the NEC should be compelled to individually sign off they understand the limit of their authority to impose policies of the NEP upon these private land owners.

Of course private property owners with full pre-knowledge of their property ownership rights , that are willing to enter into agreements with the Province to subordinate their rights to the rules, regulations and policies of the NEP are free to do so at their own discretion.

It is very clear, the NEP, as written and enforced, is ultra vires when it comes to interfering with private owned lands within the NEP borders. The province is clearly contravening and assuming powers the Canadian Constitution Act 1867 , section 9 clearly states it does not have.