by DAVE PINK
The owner of a Beamsville-area archery range is prepared to go to the highest court in the land to defend a 214-year-old guarantee that he can use his land as he sees fit, and he has the unwavering support of the Ontario Landowners Association (OLA).
Bob Mackie contends that his nine-acre parcel of land on Zimmerman Road, in the Town of Lincoln in Niagara Region, is subject only to the rules and restrictions of a Crown land patent — essentially a deal that was struck in 1798 between the original land owner and King George III. Mackie argues that the privileges granted in that original agreement were never negotiated away, and that the bylaws and land restrictions imposed in recent years don’t apply.
The Niagara Escarpment Commission disagrees, and successfully argued before a lower court that Mackie cannot use the land for an archery range because it does not conform with the land uses allowed under the property’s agricultural designation.
This fight is far from over, says the archery range operator.
“Our Crown land patents defence has never been upheld in the lower courts,” says Mackie. The next step is probably an appearance before the Ontario Superior Court, but Mackie is uncertain how soon that will happen.
It’s clear though that this case will set a precedent for other Crown land patent claims in the province.
“This is a test case. I’m kind of a guinea pig,” says Mackie.
Neighbour’s complaint triggered legal battle
Mackie bought the land in 1999, but has documents detailing who owned the land and how it was used going back to the 18th century. As well, Mackie says he has documents proving the land was at one time used for a lumber business — a pre-existing commercial use — which should set the precedent for his archery range.
The issue attracted the commission’s attention after a neighbour complained, but Mackie points out that the municipality is OK with his use of the land as an archery range.
Tom Black, president of the OLA, says Mackie has the association’s complete support. “It’s a no-brainer,” he says. “This issue has to be made clear. Up to now we’ve been stumbling along, and we have to get it to a court that has the real ability to test the question.”
The case against Mackie is being pursued by the provincial Ministry of Natural Resources, at the instigation of the Niagara Escarpment Commission. The property nudges up against the base of the escarpment on the Vine Mountain Moraine, but Mackie says it isn’t really suited for farming and that a simple re-writing of the bylaw should be all that’s needed to make his archery range legal. After all, he says, there are several gravel pits nearby, while his archery range is doing nothing to deface the escarpment.
“It doesn’t make any sense that there is no flexibility in the system,” agrees Black.
Ruling raises questions says report
A report prepared for the Ontario Landowners Association supports Mackie’s case, and argues that the lower court ruling wanders into a worrisome area as far as the province’s right to impose land use designations on private property. The report’s author, Elizabeth Marshall of the Canadian Justice Review Board, the OLA’s Chair of Research, concludes that the most recent Mackie ruling challenges the power of all pre-existing land purchase agreements, and not just Crown land patents.
“The entire ruling on Mr. Mackie’s case has raised serious questions that need to be answered. These issues must be dealt with before any other property owner, conveyor, conveyee, etc., fall prey to judicial rulings such as these. These questions must be answered, proper removal of legislation must be implemented and protective measures for the private property owner must be implemented before all other real property transactions/conveyances go forward,” Marshall writes.
Meanwhile, Mackie is continuing to operate Mackie’s Mountain Archery, his sole source of income.
Mackie’s legal fight stems from a complaint made by a neighbour to the Niagara Escarpment Commission seven years ago. Once Mackie was notified of the complaint, he applied for a permit, but was denied because the land was designated agricultural. A restoration order was handed to Mackie in November 2007. He was given 120 days to close down the operation.
But Mackie didn’t bow down. He forged ahead with his business and was then charged with not complying with the order. In July 2010, Mackie was found guilty of not complying with the order and fined $15,000.
Mackie appealed that decision, and his case was made over two days in November and December of last year in an Ontario Court of Justice in St. Catharines. On June 20, conviction was once again upheld.
The only thing Mackie has decided is to keep it business as usual at his Zimmerman Road archery. He said with the popularity of the Hunger Games and a new television show along the same theme, he is getting calls and emails daily from adults and children alike wishing to take archery lessons.
As for the legal battle, Mackie has decided not to make any rash decisions. Options include seeking a judicial review and applying to become a teaching facility. But one thing is clear, Mackie is not ready to call it quits.
“We have to keep going. We have too much invested,” said Mackie. “It’s not a Walmart we’re running here. It’s a very low intensity, quiet activity and they keep referring to it as a commercial operations. That’s a stretch at best.”
Mackie plans to meet with his advisors over the next few days to figure out where to go from here. BF
Comments
This is all nonsense - if there is even one scintilla of merit in Mr. Mackie's position, then there is nothing to prevent one, or another, of Canada's First Nations groups from claiming Mackie's land is really theirs. Furthermore, even the thought that Mackie has the right to "use the land as he sees fit", makes a mockery of zoning regulations which benefit the community, and beyond. I'm tired of flakes and nut-bars thinking they can do what they want with land, yet force everybody else to follow the rules society places on all of us for the common good (like traffic laws for example). The simple fact of the matter is that government not only must have the right to expropriate anyone's land, subject to appropriate compensation, they must have the right to decide what someone can not do on his/her property - waste tire dumps, wild-animal refuges, and so on, and so forth. Finally, while it would be bad enough living with a wind turbine next door, I think I'd rather risk that, than be hit with by wayward arrow coming from somebody's archery range next door.
Stephen Thompson, Clinton ON
Stephen, I'm not sure you know what you're talking about. Get a lesson in Crown Land Grants, fella, which is at issue here.
And your comment about getting hit by a wayward arrow is, at best, inane.
k1w1
When King George the 3rd Monarch of the time, the Natives sold land to the Crown and only the Crown if they wanted to. A document of surrender was signed by the Crowns General in Command and the Natives. Where challenges come up like Calidonia Ontario is because the Document of Surrender was destroyed in a fire in the Cayuga Court house in the early 1900's.
If the Patents are invalid all that must be done is for any court or government is to state when they were repealed. Simple, but so far no one has. I have a copy of the Patent on my property, the terms on the patent are clear and ever part, parcel, section, tract of the said lot is belongs to the Patentee and assigns FOR EVER!
The document is old, I understand where Bob is coming from, but the judge did not even address his defence, nor acknowledged his defence, Why? Sure Bob is guilty of not paying a fine and making restitution, but why wasn't his defence considered. In December when he rested his defence the JP stated that on April 2nd the Crown would present their case, they presented nothing. Something is funny here.
Get over it already, King George is long-since dead - nobody, and I repeat, nobody wants some flake to claim he/she can do what he/she wants with his/her land, without any restrictions designed for the benefit of society at large. This archery owner, and all those with the same mind-set, are guilty of being selfish, and wanting one set of rules (or lack thereof) for landowners, and another set of rules for everybody else.
Stephen Thompson, Clinton ON
Yes, King George III is dead but the monarchy has a duel persona. The Queen is a natural human and also the Head of State. While the physical body of the Crown might expire, the Head of State does not.
As the Head of State, many contracts have been signed such as the Land Patents. By your rational, when King George expired, then all his contracts would have expired with him. That would require every contract to either:
1. be re-written with the new Head of State
2. or revert back to the original ownership.
But that hasn't happened, has it?
The land grants were "gifted" or shall we say "appropriated" with set terms and conditions stated either in the land grant a/o in pre-existing statutes.
Appropriation is also defined as "designation of use".
Agriculture is defined as "a class of people that till the soil a/o raise stock".
Therefore, the land granted by the Crown to a person was designated "agricultural use" by Sovereign definition.... this designation was NOT created by our province nor the feds. It is a sovereign designation.
When the sovereign gifts, it is termed 'appropriation'. When the sovereign wants the gifts back, its termed 'expropriation'.
Unless you can show us that the Crown 'expropriated' the contractual uses of the land in the land patents, for each and every signed sealed land grant.... then you might have case.
joann vergeer
Did Canada's aboriginal people "give" the English Crown any rights to do anything with this land, or did the English Crown just seize it? It would appear that King George, as Head of State, was simply a thief, and, as far as I'm concerned, I'd be delighted to see our First Nations people put an end to this nonsense by claiming the land still belongs to them.
Stephen Thompson, Clinton ON
Did the aboriginal people "give" the land?
The lands were acquired in many ways, changes and forms. Some land was acquired by "passive" conquest (as noted by an Osgoode Hall lawyer).
There are numerous treaties signed with conditional clauses in respect to the lands. It would appear many Aboriginal peoples retained rights to the 'things' of the soil.
But the Crown signed a contract to state in a defined geographical area, all lands are "reserved" for our Native population. I believe that means, that all things of the soil were but in "trust" for aboriginal wants/needs in that defined area of which is currently protected by our constitution.
The aboriginal peoples have "rights" to things of the soil, water and sky protected by a signed contract with King George III signature on the bottom of the contract..of which HRH Queen Elizabeth II must respect.
It's all part of the Covenant Chain and farmers in Ontario/Quebec are also links of that chain by virtue of the land patents.
joann vergeer
Believe me, NOBODY, except zealots somewhere way-out on the fringe, cares about this issue, nor should they. This is 2012 - we live in a society governed by present-day legislation set up for the benefit of, and, more importantly, the protection of, us all. Please take that to heart, get over it, and get on to an issue which matters. Farmers tend to focus on the irrelevant, the inconsequential, and the just-plain outright loopy, and this issue is a prime example of that tendency. You might as well be arguing that since Queen Victoria gave your grandfather a car with a steering wheel on the right hand side, that you somehow have a "right" to continue driving on the opposite side of the road to everyone else.
Stephen Thompson, Clinton ON
"This is 2012 - we live in a society governed by present-day legislation set up for the benefit of, and, more importantly, the protection of, us all"
You constantly contradict yourself.
Our Canadian Constitution is merely a piece of legislation. The first BNA was formed through legislation in 1821.
The rights and privileges are indeed protected by legislation as is the rights of the original domestic population..... which includes elements connected with land patents.
p.s. Your analogy in regards to the Queen has absolutely no bearing, connection or resemblance to the discussion. Those kind of statements are completely irrelevant to the topic on hand. Deflection ploy?
joann
People in agriculture never cease to amaze me - no other sector of society so-regularly, so completely, and so-zealously, latches on to ideas which are complete lunacy from front-to-back, and the issue of land patents is one of the biggest examples of outright lunacy I've ever seen.
Stephen Thompson, Clinton ON
comment modified by editor
Sounds like Stephen might be, or somehow is connected to, the neighbour who complained. Stephen - for someone who claims to not care about this issue, you sure are spending a lot of time and energy on it!
I care when people waste their time, energy, and resources, on fruit-cake issues which have absolutely no reason to even be issues in the first place
Stephen Thompson, Clinton ON
I want that. That is our heritage, culture, custom and law. Without that we are looking for laws without any stability, created for the flavour of the day. Nothing wrong with that at the surface, but that created Russian revolution, "democratic" government of Adolf Hitler, Pol-Pot etc.
Stephen I replied to you yesterday but the moderators did not leave my post.
I will send you a scanned copy of my patent along with a word document that is in easy read text. The patent for the most part is hand written in the King's English of the period.
Email me akaluzny@cogeco.ca
Anthony R. Kaluzny
Grimsby Ontario.
get over it - I have no desire, nor does the rest of society, to let you and/or anyone else have special rights allowing you to violate the rules of common sense and/or common law set up to protect the rest of society from whatever it is you people feel you have the right to do. Obey the law like everyone else, and stop being so churlish, and so selfish, about it.
Stephen Thompson, Clinton ON
People has an opion on the topics that is printed in better farming. I don,t like to read nothing but one person,s opion that think him or her opion is right and everyone else,s is wrong or out too lunch on every subject. So have some respect for other people,s opion without all the name calling.
@ Stephen, you've accumulated a hold pile of bad Karma for yourself while speaking loosely with what may be questionable knowledge in what appears to me an attempt to harm an innocent business owner.... someone who is offering a positive arena for a safe sport that encourages youngsters et al with the utmost safety to become skilled sports people with no damage to the environment or neighborhood. For shame!
I don't care if this "innocent business owner" can walk on water and turn vinegar into wine, the fact of the matter is that he is trying to circumvent legislation set up for the benefit of us all, solely for his own personal gain. The bad Karma rests entirely on his shoulders, as well as on yours for trying to turn the perpetrator into a victim.
Stephen Thompson, Clinton ON
I
Go look what common law is, that is all that you need on a private property. Crownd land pattent are legal documents, if you say they are not good then all the new laws are not good! I have worked in the federal goverment for 17 years has a computer consultant and beleave me the goverment does not worked for us they worked for them self. We dont need them to tell us what to do on our private property because we already have common law. In some part of weakfield the are now teling you what color to paint your house! and in gatineau if you whant a cat or dog from the SPCA you have to put a computer ship in does animale (GPS), if we let them contineu to tell us what to do with our live they will put a computer ship in hour ass. private property is very, very important in a free world!
And for expropriation we have to site down and try to find a solution, allot of the time it has noting to do with sociaty it as to do with $$$$$$$$$$$$$$$$$$.
GUY
Well said ,true to the very end.
It appears Stephen from Clinton is very happy being a serf of the Crown in whatever right it pleases, operating foreign to the people. The Crown Grants are at common law and from the Imperial Crown. The "Crown" who repeatedly attacks the people and their rights are operating according to municipal or civil law which is foreign law and not to be used against the people.
If you don't believe me, then you need to read the Commentaries on the Laws of England, Book 1 Part 1 - The Absolute rights of individuals.
http://ebooks.adelaide.edu.au/b/blackstone/william/comment/index.html
The Imperial Crown known as the Monarchy put the land in peace with the Crown land patents and then the municipal law tried to usurp the authority of the these peace documents by fraud making every one of the people believe they are a (Roman) person who is subject to "the State".
The Federal and Provincial "Crown" and the municipalities only have authority over public land or land they own. They are stealing land through fraud by deception and are usurpers of the law as they are ignoring their oath of office and are in treason to Her Majesty. This of course is all being orchestrated by the Bar Societies, better known as the Law Society of Upper Canada in Ontario.
The people are free under common law but have been captured into a foreign law that appears to take away all their rights, but it is only "colourable".
Read section 52 of the Constitution Act, 1982 and hopefully the people will get a starting grasp of the beginning of the solution. Then read section 26 of the Charter of Rights and Freedoms and Section II 5(a) of the Bill of Rights.
The people "STAND" on the Constitution and it is to protect their rights and liberties as the people are not person under and subject to the consitution. That is what the "State" wants everyone to believe so they will have power over the people who are lost in a sea of legalize bull.
I also recommend anyone who truly wants to understand the truth and how to use the Constitution to go to this website: www.setoffdebt.com
God Bless the People. God has no respect for persons. For those who don't know what a person is in law it is a legal entity created by the State and subject to its corporate rules they like everyone to think are laws.
Troy
To date i have not yet seen the value of a land patent, i know that the Land Owners Association, have spent a lot of time talking them up but i have yet to see how they have been of value to any land owner. I would love to hear real first hand stories of people who have actually gained some real value by having there's, its great to say what the land patent is good for but if the government doesn't recognize them they are worthless in my opinion, i am open to being proved wrong...
Sean McGivern
Mr. McGivern stated: "government doesn't recognize them" in regards to land patents.
I would disagree with that statement. Our government does indeed recognize land grants.... but in ways that benefit them.
The land grant issue is very complex with its roots found in ancient times.... much like other rights we recognize in our society (ie; safety and security of persons).
One has to remember that each land patent is a unique document. They are contracts of which the date of each patent is of extreme importance.
As an example:
For every land grant (in parts of Ontario) there is at least one previously registered document. It is this document that lays down the basis of trespassing laws. This pre-grant document also lays out who may enter farm properties without warrant.
The land grant is the key document attached to our Sovereign Food Supply laws which still exist today. In other words, if the Crown wants/needs the farmers' food, animals, water, etc... the farmer is under obligation to supply the demands... at a price the Crown may set.....laws of purveyance. McGuinty re-introduced those laws on his watch.
The land grants were "appropriated" to qualifying persons. Appropriation is defined as "designation of use". It is the land grant that is the foundation of "agricultural use" (an ancient term) in the Provincial Land Use Policy. Through these grants, the Province was able to pass the GreenBelt law. Mr. McGuinty re-introduced strict land use in designated areas on his watch.
The Crown is very conscience of the fact that they have retained rights attached to the land grants and they are not afraid to exercise those rights.
McGuinty is a lawyer and therefore is acutely aware of Crown rights in regards to land grants.
We, the farmers, are the unenlightened ones in regards to land grants for the most part.
joann vergeer
I am nobody's serf, and anyone who knows me, would tell you so. Furthermore, I have never seen anything which simultaneously subscribed to more conspiracy theories than the posting to which I am responding - are you for real?
Stephen Thompson, Clinton ON
In response to our pal Stephen. It is tough enough trying to make a living in agriculture without these nut bars coming from the city and telling us what we can and cannot do on our property, even when it relates to a farming aspect of our business. I will not elaborate but in my case I conform to all municipal by laws and this nut has cost me over $50,000. In 10 years. I sure hope the Land Patent law prevails. T.L.’
I'd far-sooner deal with city dwellers than some nut-bar land owner who believes he/she is somehow exempt from the rule of law which governs the rest of us. I don't want some nut-bar farm owner deciding to diversify by turning the farm next door to me into a used tire dump, or a rendering plant, or any other sort of use which doesn't make sense to anyone/anything but the wallet of the proponent. Or, it's like this - if you want to continue to get the reduced farm property tax benefit, suck it in, and deal with it.
Stephen Thompson, Clinton ON
Unsigned personal comment removed
Its good to have laws that keep people from doing whatever and to make the neighbours life hell. Its people from the city and country and every walk of life , the bottom line is money and the more they get the more they want. If you want to farm go ahead but why should we have people destroy the peoples life around them also , and chances are they don,t even live near what they are destroying.
Can the crown land patent be taken to the queen to change the restrictions and archery didn't Indians back in the day use a bow and arrow
Liberty comes from God and not government. We should not proclaim the supremacy of government law just because it is the law of the land. Sometimes the government law is just plainly wrong.
A country has a constitution, and especially a republic such as USA, to prevent the encroachment of government and democracy onto areas of personal liberty. Government is granted some limited authority, not all. The individual has all the rest of the authority.
I am appalled by arguments like Stephen's of Clinton that appeal to the collective good, as though the laws and bylaws are presupposed to be just. They came into being by our rulers. Sometimes they are not just. Sometimes the rules are mob rule and a small clique uses law to control us for their good, not ours.
David
So "liberty comes from God not government". What about for the majority who believe in a secular rule of law? What do you say to all the people who believe in something or some other deity besides your God? Do they have the same liberty your god gives you?
From the rules of 1907 legal system of Ontario.In contractual law their are two parties and unless one of the parties breaks the contract it is deamed legal.The I would place the foundation of all our laws at risk if the binding contract of a CROWN PATENT is tampered with! Ken Hughes
When it comes to having the situation where a "small clique uses law to control us for their own good, not ours" - we already have that in agriculture, and it's called supply management.
Therefore, it is complete, and utter, nonsense for farmers to support the rights of small cliques to control those things we like, yet fulminate mightily against the very idea that the same principle could be used against us.
I'm sorry, David, but your claim that liberty comes from God is not just appallingly selfish, but it is also the first refuge of scoundrels and bigots, and is exactly the sort of thing which any democracy, and those who believe in it, must always oppose.
Stephen Thompson, Clinton ON
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