The tailgate party

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by L. G. William Chapman, B.A., LL.B.

Although you would never know it from reading that USA iconic on-line dictionary Wikipedia, the "tailgate party", like so many other Americanisms, is an arrogation of a long-standing British tradition. In Britain the upper classes made the event famous at Royal Ascot (the centrepiece of the British social calendar for the last 300 years) by serving up Champagne and finger sandwiches out of the boot of the Rolls Royce before the commencement of the horse races. The Americans have succeeded in translating the once reserved practice into a supercharged urban picnic in stadium parking lots complete with loads of artery-clogging foods and beer along with the inevitable male bonding and bravado so peculiar to the sports setting.

Recently through a well-informed source I got wind of a public meeting about Crown Patents for property owners to be held at seven o’clock in the evening at the Cobden Agricultural Hall in Cobden, Ontario near Eganville. The promotional literature promised the advent of guest speakers from Renfrew County and the Lanark County Landowners Association, that provocative politically inspired collection of hardcore real property owners with a decided animosity to the provincial Liberal government of Mr. Dalton McGuinty and a balancing preference for the Conservative Party headed by Mr. Tim Hudak. The anticipated presentation, aside from being of particular interest to me as a rural conveyancer, presented an opportunity to dive into Ontario’s hinterland, always a pleasure and the occasion of more than one Sunday drive.

Due in part to the ostensibly dry and obscure nature of the upcoming topic, it at first seemed that I would be making the early evening junket to the Cobden Agricultural Hall on my own. When however I seized the providence to include in the adventure my long-time friend (whom I shall call Jane in the interests of obscurity), the undertaking immediately assumed exponential dimensions. Jane, let me simply say, is not without her flourish and she has a positive adoration for pomp and éclat. What, I reasoned, would be more apt in view of the time constraints than to orchestrate a small picnic on an early Spring evening before the Hall meeting? In an instant I telephoned Jane who upon hearing my proposal and without missing a beat pronounced, "I’m in!" The wheels were thus set in motion.

My office is located on the Town Square and I am fortunate to have the advantage of being situate immediately next door to Baker Bob. In preparation for our little picnic I determined to attend upon Baker Bob’s emporium to collect some tuna sandwiches, tabbouleh, milk (chocolate for Jane, white for me) and – here’s the zinger – four Nanaimo bars. Yum! What a delectation! Having once purchased the provisions and having stashed them carefully in my little office refrigerator pending our late afternoon departure, I began to ruminate upon the subject of a tailgate party. The process required some fermentation. By noon however I was ransacking the basement of my house for a wicker basket, gathering up linen napkins, large wine glasses, a suitable table cloth and two sterling silver spoons. That about completed the furnishings for the picnic. We would have to forgo the convenience of folding chairs. Not that I would ever use it for anything constructive, a final ornament was my new pocket knife from Pathfinder in Carleton Place. The stage was set! I now required only a copy of the Public Lands Act and we were ready for the game!

At five o’clock I promptly closed my office doors and blithesomely headed directly to collect Jane. She materialized at her front door, prompt as usual, carrying a number of items the details of which she promised to reveal in due time, but meanwhile she deposited them surreptitiously in the rear seat of the car. Off we went!

It was as always a relieving drive through Pakenham to Arnprior then along the Trans Canada highway to our destination. Wandering into the depths of the Ottawa Valley is ever uplifting. One can almost feel the anxiety of the day falling away. While my GPS indicated that I was approaching uncharted territory on the outskirts of Cobden, it didn’t require much navigational skill to find our way to the Cobden Agricultural Hall as there were clearly posted signs from the main highway.

We arrived at the Hall around 6:15 p.m., in good time for the upcoming seven o’clock meeting. Thankfully there was still daylight though in the late afternoon clouds had moved in and diminished the former brilliance of the day. We scouted the parking lot surrounding the Hall and proceeded off the pavement to a far sandy corner near the Horse Barn adjacent the riding ring. There we parked and, leaving the doors of the car open (to inspire the appearance of complete abandon) commenced to lay the picnic table. The table in this instance was the closed trunk lid of the vehicle. On that we spread the linen table cloth, then positioned the cloth serviettes, silver spoons, wine glasses (and pink curly straw for Jane), after which we distributed equal portions of sandwiches, tabbouleh and – did I mention this – the Nanaimo bars! At this juncture, Jane retrieved from the back seat of the car her clandestine collection being a mobile butterfly (which she planted in the nearby sandy loam) and two mock tin ants (which she posted threateningly nearby the sandwiches). Naturally a photo session ensued!

For the next half hour we munched, sipped and gossiped, meandering without direction or purpose from this subject to that, allowing our casual gaze to range aimlessly about us fancying the pastoral surroundings and imagining what the agricultural grounds must be when alive on a hot summer’s day. There was however in actuality a chill in the early evening air and having accomplished our appointed task at the trough we weren’t long gathering up the remains of our provisions and reinstalling them in the wicker basket.

Then we set off arm-in-arm for the Agricultural Hall. Although there were perhaps only thirty people there when we arrived, it was not long before the ranks swelled to considerably more and almost every seat in the house was eventually occupied.

The thrust of the presentation was that the provincial government hasn’t the right to restrict the use of private land ownership. The contention advanced is based upon the theory that the original deed (Letters Patent) from the Crown (England) bestowed benefits of ownership on the original settler in perpetuity and there is nothing that can be done subsequently to erode those benefits (subject to any "reservations" contained in the original Letters Patent). By the way, the etymology of Letters Patent is apparently an open (hence "patent" as in manifest or obvious) or public document as evidence of its contents, as opposed to a closed or private document addressed to one or two people only; in the former case the document was displayed flat and sealed; in the latter case the document was folded and sealed on the outside. There was some acidic observation made by the first speaker that the Ministry of Natural Resources (Ontario) has deliberately attempted to conceal the contents of the Letters Patent by harbouring them in its archives in Peterborough, Ontario (as opposed to having them on public record in the local Land Registry Offices) but I consider this merely a document management decision, not one directed to preserving what the speaker labeled "esoteric" information (belonging to an inner circle). To obtain a Crown Patent it is simply a matter of ordering one through the Ministry for a prescribed fee:

The speaker further counseled his listeners to get a "certified" copy of the Letters Patent (at some added expense) though frankly I believe that goes more to the issue of proof (as might be required in Court of Law) than information.

The Crown Patent, according to Bob Mackie (Plaintiff in a dispute over the jurisdiction of the Niagara Escarpment Commission to control the use of his land by him) is "…a new weapon in (the) fight to get governments to back off and respect individuals’ property rights". This handle "Back Off Government" has become the war cry of a seemingly disgruntled populace, especially rural where the extent of use of property affords greater opportunity. There were "Back Off" signs for sale at the meeting. This burgeoning battle, it was suggested, is going to change the way the Province deals with private property matters. Said Mackie, "I think we really have something with the Crown land patent grants. They have been buried and kept from public view but the OLA (Ontario Landowners Association) feels we can make a difference." A Crown land patent grant from King George III should trump provincial legislation that restricts usage on Bob Mackie's Beamsville property, the court heard in opening arguments. In effect Mackie told the court it's now his understanding the Crown land patent grant he recently obtained supersedes all provincial legislation.

Patent grants were awarded to settlers by the Crown, entitling them to private ownership of specified lots. Even though lands have changed hands many times since the orders were granted, the rights guaranteed in the original contracts remain in effect today. "Crown patent grants have been one of Canada’s best kept secrets from our point of view," said Jack MacLaren, president of the OLA. "They protect and preserve property rights handed down from the king or queen. It’s a legal document, an act of parliament, the highest law of the land. No other federal or provincial law can be created to take away the rights given to a land owner in a patent grant."

But not everyone agrees. The contrary argument not surprisingly is that the Province has the authority to legislate property and restrict people's land use. "There's nothing in this Crown land patent that attempts to block the application of provincial law," one opponent has reportedly said. Speaking of the Mackie case, he said when the commission zones areas, it does so for the good of the community. "There's a benefit overall to the community with the planning process."

It doesn’t improve the OLA’s position that Ontario Landowners Association founding president Randy Hillier has split from the organization over this very point. He says he is no longer a member of the OLA, the group that is widely credited for launching his career as a Progressive Conservative MPP in the Provincial Legislature. Hillier disagrees with what he calls the "misguided" approach of the OLAs leadership, using Crown patents to try to establish private property rights. He says the OLA executive is "misconstruing a legal instrument for transferring land . . . to believe these Crown patents are superior to the Constitution of the country and superior to the legislative authorities granted in the Constitution".

As I sat listening intently to the propositions being advanced with some considerable gusto and enthusiasm by the speakers in the Cobden Agricultural Hall several issues occurred to me:

  After "we" (the current Canadian regime) took over this country by force from the native Indians, our Fathers of Confederation established the Constitution of Canada, a series of Acts of the Legislature called the British North America Act, 1867 (and later named the Constitution Act, 1867) so that "the Provinces (Upper and Lower – viz., Ontario and Quebec) of Canada, Nova Scotia, and New Brunswick shall form and be One Dominion under the Name of Canada". The introduction of the Distribution of Legislative Powers, Section 91 reads as follows:

It shall be lawful for the Queen, by and with the Advice and Consent of the Senate and House of Commons, to make Laws for the Peace, Order, and good Government of Canada, in relation to all Matters not coming within the Classes of Subjects by this Act assigned exclusively to the Legislatures of the Provinces. Section 91 delegates to the Provincial Legislatures exclusive jurisdiction to make laws regarding:

(5) The Management and Sale of the Public Lands (emphasis added) belonging to the Province and of the Timber and Wood thereon; and,

(13) Property (emphasis added) and Civil Rights in the Province.

Because the Queen did in fact consent to the legislation, it is arguable that at least with respect to those Letters Patent granted after 1867 (which indeed many were) the strength of the Letters Patent is diluted to the extent of the exercise of authority by the Provincial Legislature (and I interpret the use of "property" broadly, not restricted as it is elsewhere to "public lands"). It appears however that the OLA is more inclined to view the Letters Patent as a stand-alone regime between the Crown and the Patentee. I find this latter argument offends the principle "Nemo dat quod non habet" ("No one gives what he does not have"). That is, if Her Majesty has already compromised her authority by capitulating property rights to the Provincial Legislatures, I find it difficult to maintain Her authority to do otherwise subsequently.

Even if one is lucky enough to have Letters Patent which pre-date the Constitution Act, 1867, the debate remains whether the citizens of the Dominion are entitled to object to the decision of their then elected officials to submit to the new Constitutional regime; or whether the Patentee is entitled to rely upon a concept of "grandfathering" to escape being snared by the subsequent legislation.

During the Cobden presentation some convenient reference was made to the Public Lands Act (Ontario), Section 61 which avoids any reservation in favour of the Crown of mines or minerals contained in Letters Patent issued prior to 1913 and deems them to have passed to the Patentee. Interestingly in that legislation there is a singular definition of "public lands" ("lands heretofore designated as Crown lands, school lands and clergy lands") but not of "land". I conclude therefore that Section 61 applies to private land, as the OLA was inclined to do for obvious reasons. There is however a contradiction that arises from that conclusion, and that is that the Provincial legislation is sustainable, contrary to the opening thesis which refuted the authority of provincial legislatures to wade in upon private land rights. When I mentioned this to the speaker in Cobden he replied that the Crown could give but it could not take away, though I confess I do not know by what authority he says so.

When at last the meeting drew to a close I was left with the distinct impression that the battle is less about constitutionality and more about frustration. The Mackie case for example involved a man who bought some fairly run-down scrub then, because of failing health and after having improved the property considerably, erected a building to house an operation to allow him to run an archery business and make a living. Regrettably the building blocked the view of the escarpment by a neighbour, but the challenge to the structure was on the basis of land use (which particular use was by omission not included in the permitted uses of the Commission’s by-law). It is easy to see the source of debate and frustration on both sides, and I suppose one must at the very least congratulate Mackie and his OLA supporters for raising such an interesting grounds for objection.

You’ve no doubt heard it said that in order to illustrate a point, take an extreme example. Thus, if one wishes to explain the difference between a 20" car wheel and an 18" car wheel, imagine instead the difference between a 20" wheel and a 3" wheel. It takes little imagination to appreciate that your car would have a lot more bumpy ride on 3" wheels. That being said by way of introduction, I was distressed that the OLA members sought to advance their general theory of the overbearing nature of government by referring to legislation which forces a private property owner to innoculate dogs which never leave the property. The argument is of course that if there is no possibility of injury to the public, the government should pull in its horns. Where however this reasoning becomes less than convincing is when applied for example to more arresting concerns such as the Planning Act (Ontario). The Planning Act is the legislation which establishes the regime for severance of one’s property. The OLA would have you believe that the Provincial government has no right dictating how one subdivides one’s own land. Embracing this is in my opinion a hollow victory. Even if you were inclined to pay to survey your acreage into several lots, I rather doubt you’d be successful in getting any prudent buyer to accept the legitimacy of your title without the stamp of approval from the local Land Division Committee.

All this is to say, the OLA has a long way to go before implementing any practical scheme to unchain the individual from government fetters. The movement has a limited appeal not merely because of its intense mental gymnastics but more because it is a cause without a purpose for most. Nonetheless the incitement to parlay numbers into strength is not without its pragmatic effect even without the rhetoric.