Law of the Land

Law of the Land: The Advent of the Torrens System in Canada

GREG TAYLOR
Copyright Date: 2008
Pages: 256
https://www.jstor.org/stable/10.3138/9781442688469
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  • Book Info
    Law of the Land
    Book Description:

    Greg Taylor traces the spread of the Torrens system, from its arrival in the far-flung outpost of 1860s Victoria, British Columbia, right up to twenty-first century Ontario.

    eISBN: 978-1-4426-8846-9
    Subjects: Language & Literature

Table of Contents

  1. Front Matter
    (pp. i-iv)
  2. Table of Contents
    (pp. v-vi)
  3. Foreword THE OSGOODE SOCIETY FOR CANADIAN LEGAL HISTORY
    (pp. vii-viii)
    R. Roy McMurtry and Jim Phillips

    The Torrens system was a mid-nineteenth-century reform of land titles registration originating in South Australia. Almost as soon as it was invented, the system was introduced to the then colony of Vancouver Island, and a little later it became the land titles system for British Columbia. In the later nineteenth and early twentieth centuries it was introduced to what is now Western Canada and to Ontario. This book tells the story of these various receptions of the system. While in British Columbia and the Western territories/provinces the system was established more or less at the time of initial European settlement,...

  4. Preface
    (pp. ix-2)
  5. 1 The Torrens System: An Outline
    (pp. 3-17)

    The Torrens system of registering land titles was conceived in South Australia in the mid-1850s under the leadership of (Sir) Robert Richard Torrens, a government official and member of the provincial Parliament. It was introduced by South Australia’sReal Property Actof 27 January 1858 and is now the predominant system of land titles registration in the Commonwealth of Nations. Once its success in South Australia was established, it was adopted quickly by all other Australian states (as they now are). Within four years Torrens statutes existed in all other Australian jurisdictions except Western Australia, where it was adopted in...

  6. 2 The Invention of the Torrens System
    (pp. 18-30)

    The Torrens family came from what is now Northern Ireland, although Robert Richard Torrens, the inventor of the Torrens system, was born further south in Cork, in 1814. Colonel Robert Torrens, Robert Richard’s father, was a political economist of some repute in his day and not entirely forgotten even today. Eight volumes of theCollected Works of Robert Torrenswere published as recently as 2000.² Torrens senior comes into the story of South Australia because of his unremitting labours as Chairman of the Colonisation Commissioners in promoting the settlement and growth of the colony in its early years. He never...

  7. 3 Vancouver Island: The Second Torrens Jurisdiction in the World
    (pp. 31-56)

    Despite the very rapid spread of the Torrens system within Australia and New Zealand, the second jurisdiction in the world to adopt the Torrens system was not in Australasia. It was Vancouver Island,¹ where a British colony had been founded in 1849. Its registrar general, Edward Graham Alston, was the second Torrens registrar general in the world, after Torrens himself in Adelaide.

    The British colony on Vancouver Island was set up in 1849 because otherwise the Island might have been settled first by Americans or squatters.² Seen from London in the days before the trans-Canada railway, the western coast of...

  8. 4 British Columbia
    (pp. 57-67)

    British Columbia and Vancouver Island were not united until 1866. Before then, although legally separate, they often shared staff, from Governor James Douglas down; and as we have seen, George Cary was at a crucial time in the story both acting attorney general for Vancouver Island and attorney general for British Columbia. But the colonies were separate constitutionally and had separate legal systems. Mainland British Columbia was a Crown colony without a representative legislature and with a rather different economic and demographic structure from that of Vancouver Island, for British Columbia was overwhelmed with gold miners once the gold rushes...

  9. 5 The Canada Land Law Amendment Association
    (pp. 68-94)

    The survival of the modified Torrens system in British Columbia did not by any means entail its expansion into the rest of Canada. British Columbia was still, for most Canadians east of the Rockies, an unknown land with few real connections with the rest of Canada. John McLaren and Hamar Foster remark that ‘only gradually, most notably after the completion of the transcontinental railway in 1885, does one get the sense that British Columbia began to move seriously into the orbit of Canadian cultural and economic life; and even then the rapprochement was often grudging and, among the elite, partial.’¹...

  10. 6 Ontario
    (pp. 95-114)

    It has become the received opinion that Ontario’s version of the system of title to land by registration (commonly called there the ‘land titles’ or Torrens system) was based on the English system of registration rather than the Australian one.¹ It is not surprising that this opinion should have taken hold given that the marginal notes to the original statute, theLand Titles Act1885 (Ont.), refer repeatedly to provisions of theLand Transfer Act1875 (U.K.), and that there are many obvious similarities in the drafting. Even so, this hardly represents the whole story: there are scattered among the...

  11. 7 Saskatchewan, Alberta, and the North-West Territories
    (pp. 115-130)

    The Prairies were purchased from the Hudson’s Bay Company and conferred on the infant Dominion of Canada in 1869. With the exception of the special case of Manitoba, created as a province in 1870 in the wake of the Métis rebellion of that year, the whole area remained under direct federal suzerainty until 1905, when the provinces of Saskatchewan and Alberta were created.

    In 1885 and 1886, all three provinces (or provinces-to-be) received the Torrens system. This chapter is about how Saskatchewan and Alberta did so jointly by federal legislation – as part of the North-West Territories – in 1886. What remained...

  12. 8 Manitoba
    (pp. 131-154)

    Before Manitoba was founded, the law of the Red River Colony, the Hudson Bay Company’s settlement based around Fort Garry (now Winnipeg), was that land could be transferred by oral agreement. The formal legal reason for this was that English legislation of 1677, theStatute of Frauds, which required transfers of land to be in writing, did not apply in the territories of the Hudson’s Bay Company, which had been incorporated seven years before the statute was passed.¹ The basis for allowing land transfer by oral agreement in the society in which it operated was – as Mr Justice Albert Killam,...

  13. 9 Quebec, the Maritimes, and Newfoundland and Labrador
    (pp. 155-161)

    By the end of the 1880s, a Torrens system of some form or other was established, more or less firmly, in what are now the five provinces and three territories to the northwest of Quebec. Had the Torrens system continued its march eastwards, its next conquest would have been Quebec. This province had inherited the old French law of real property, but had also had a land registry system of the old English chainof-title type since 1830. This system had been improved by means of an index to land parcels (not just the names of owners) and systematic maps in...

  14. 10 Concluding Remarks
    (pp. 162-168)

    The story I have told is, of course, a lawyer’s story. That is nothing to be ashamed of, but a story told by someone from another profession involved in land titles would be different in emphasis. In particular, a surveyor might have concentrated less on the details and origin of the legislation and its reception in the various jurisdictions in which it was introduced, and said rather more about the – too often neglected – practical requirements of accurate surveys and maps needed to support a system that provides for a state guarantee of title. I lack the expertise to tell that...

  15. Appendix
    (pp. 169-170)
  16. Notes
    (pp. 171-214)
  17. Index
    (pp. 215-222)
  18. Back Matter
    (pp. 223-225)