CANADIAN SUMMARY INFORMATION
IMPLEMENTATION OF SANTIAGO ACTION PLAN ITEM PROPERTY
l, Streamline and decentralize, as necessary, property registration procedures by, adopting transparent, simplified procedures for titling and registration; disseminating information regarding these procedures; utilizing, whenever feasible, state-of-the-art technologies for property georeferencing, computer-generated mapping and computerized records storage; incorporating alternative dispute resolution mechanisms; and avoiding overlapping administrative fees for titling and registration.
Section 92 of Canada's Constitution Act, 1867 prescribes that the legislature of each province of Canada has the exclusive jurisdiction to make laws in relation to "Property and Civil Rights" in the Province. This jurisdiction includes the creation of property rights, their transfer and their general characteristics, thelaw of landlord and tenant, trusts, wills, succession, conveyancing, and landuse planning. The term "real property", in the common-law provinces means land, including mines and minerals, and buildings, structures, improvements and other fixtures on, above or below the surface of the land, and includes an interest therein.
One of the basic principles of real property law is that a seller cannot confer a greater title than that which he or she holds. Accordingly each of the common law provinces of Canada has developed a system of registration which determines the ordering of rights and assists a seller in demonstrating a valid title on sale.
A land titles system should provide a means for the ranking of competing interests, The land titles systems of the two provinces mentioned below are based on the concept of "title". They allow an unlimited number of claims over the same tract of land. Land title systems provide a procedure for the registration of the substantive rights under the common law of real property. They are all based on the principle of priority. However they also facilitate private dealings and tend to reduce the costs of property transactions.
Land titles statutes in the western Canadian provinces and in Ontario are based on a "title" registration system. All of these except British Columbia are based on an interest recording system. The British Colombia system confers not only priority but also a rebuttable presumption of ownership, All of the statutes contain elements of the common law system. All of them include systems of compensation for losses caused by a "malfunction" in the registration systems. The outlines below summarize the property registration system in the provinces of British Columbia and Ontario.
The Province of British Columbia
The British Columbia Land
Titles Act is based on a land titles registration system that was developed by Robert Torrens, in South Australia in 1858. The South Australian system was adopted in the western provinces of Canada.
The basic purpose of the Torrens system is to create a system that promotes facility of transfer, allowing for simplicity, speed, and reduced conveyancing costs. The Torrens system also attempts to certify titles, on the basis of minimizing the need to second-guess the government records as to the validity of the rights listed on the register. The role of the state is crucial. While at common law conveyancing was fundamentally a matter of private dealing, under the torrens system the state confers title through registration, and it is the state that warrants (in some measure) the ownership of the seller. An integral element of most Torrens systems is an insurance principle. An insurance fund is to be established to provide compensation arising out of errors produced by the system itself.
The Province of Ontario
When Ontario became a province of Canada it adopted the British "registry" system which was in effect at that time. There currently are two land registry systems in Ontario, namely, the registry system and the land titles system. The
Registry Act identifies the registry system. The Land Titles Act governs the land titles system. The land registry system was established in 1795 while the land titles system was not created until 1885. The registry system is a filing system for instruments affecting title. This system is being phased out as part of the process of streamlining and automating land registration in Ontario.
Under the land titles system, each separately owned piece of land is called a "parcel" and eachparcel has a number. Dealings with a parcel are registered in a "register". On the registration of a subsequently-registered instrument disposing of an interest, the registrar rules off the previous instrument that has disposed of the same interest. The parcel register therefore shows a consolidation of all instruments into the latest instrument or instruments. The parcel register contains the name of the "owner" of the parcel and lists encumbrances by instrument number.
The instruments that may be registered are listed in various sections of the Land Titles Act. Theforms of those instruments are prescribed by the regulations. The Land Titles Act states that no person, other than the registered owner, is entitled to transfer or charge registered freehold or leasehold land by a registered disposition. The Land Titles Act, R.S.O. 1990. Chap. L-5 sets out who may register an interest in land.
The Ontario Minister of Consumer and Commercial Relations has announced that the Province of Ontario will convert to an entirely electronic system of land titles registration. This initiative contemplates a completely paperless land registry system. Searches of title will be done through a computer terminal in the lawyer’s own office. It is intended that instruments dealing with interests in land such as deeds, leases, mortgages, discharges of mortgage and easements be created, signed, transmitted, and registered electronically. Real estate transactions could therefore be completed from the lawyer's office without the necessity of personal attendance at the Land Titles Office.
The electronic land registration system in Ontario was designed as a paperless electronic record-keeping system that willeliminate actual signatures on all principal documents affecting title. The system will incorporate the capability for remote access to the electronic system in order to obtain, create oramend information within that system
The Canadian Territories
Property registration in the Canadian territories has been devolved to the territorial governments (Yukon, Northwest Territories, which is also currently handling property registration for Nunavut). Computerized systems for administering temporary land interests (such as land use permits; and mineral claims) are being used by the Regional offices of the federal Department of Indian Affairs and Northern Development (DIAND). Several systems are in place and are available online and include information en indigenous land settlement.
The Northern Information Network (NIN), http://www.esd.com/inac.gc.ca/nin/home.asp,contains information about the Yukon, Northwest Territories, and Nunavut for more effective decision making forresource management and other uses. It contains geo-referenced data and other information.
Property registration services to indigenous people living en Indian Reserves and to non-indigenous people leasing land en those reserves are provided aspart of DIAND’s responsibilities under the Indian Act. Th-e presentregistration process is 100 percent computer based. Work is underway to move the software to a modem relational data base management system (RDBMS) that will provide an Internet-like interface to users across the country. Documents are accessible via the internet or distributed en CD-ROMs.
II. In accord with national legal frameworks, implement measures, where necessary, to protect rights accorded to indigenous populations, as well as information programs, if needed, to assure greater awareness of indigenous populations of their rights, in this respect.
Property registration under Canada’s Indian Act, asdescribed above, is a special arrangement for First Nations in Canada, Ways to assume more responsibility for land management are available. For example, the First Nations Land Management Act, which received Royal Assent in June 1999, enables 14 First Nations to opt out of the land managements sections of the Indian Act and establish their own regime to manage their lands and resources. For those groups with a land base, indigenous self-government arrangements can include land management and property registration. Where treaty or other legal means have notpreviously dealt with Aboriginal rights and title, Aboriginal or indigenous groups can negotiate comprehensive claims agreements.
These agreements define a wide range of rights and benefits, which may include full ownership of certain lands, guaranteed wildlife harvesting rights, and participation in land and resource management. The final agreements contain details on land title and property registration. Self-government and claims negotiations are underway with indigenous groups across Canada.
The territorial government of Nunavut, which was established on April 1, 1999, was an outcome of negotiations of comprehensive land claims and governmentalarrangement and resulting federal legislation. Nunavut comprises one-fifth of Canada and a large percentage of its population are Inuit. The new government is building its capacity and once systems and personnel are in place, will take on property registration functions for its territory from the Northwest Territories.