108 If Designation On Plan “Returned To Crown In Right Of The Province”

PRACTICE

Present and Retroactive Exemptions from Section 108(2)

Although this section is contained in the Land Title Act, anyone who intends to seek an exemption under s. 108(3) from the operation of s. 108(2) must make application to the Surveyor General. The application must be made in accordance with the Surveyor General’s Circular Letter No. 468, April 21, 2015, reproduced at “Re: Section 108 Land Title Act (C.L. No. 468)” in this chapter. Anyone who intends to seek a retroactive order under s. 108(5.1) must make application to the minister responsible for the Land Act (currently the Minister of Forests, Lands, Natural Resource Operations and Rural Development).

Return to Crown Transfers of Land Covered by Water

General Provision: Section 108(1)

Section 108(1) is the general provision dealing with “Return to Crown” transfers. A designation under this section operates as a fee simple transfer from the subdivider to the provincial Crown. Under s. 108(7), no indefeasible title is registrable in consequence of a s. 108(1) transfer. Notwithstanding this general provision, the Act expressly provides two ways, the first in s. 107(1)(b) and the second in s. 108(2), in which land covered by water may become vested in the Crown.

Section 107(1)(b)

Section 107(1)(b) provides for the dedication of land covered by water shown on a plan by using the “Return to Crown” designation. The deposit of a plan under the circumstances contemplated by this section operates as a dedication to the public and vests the dedicated area in the provincial Crown. Section 107(3) prohibits registration of an indefeasible title to land dedicated for a highway, public park, or square.

Section 108(2)

Section 108(2) operates as a transfer in fee simple to the provincial Crown without any “Return to Crown” designation. In order for this section to operate, three conditions must be met:

1. a subdivision or reference plan must leave a remainder;
2. a portion or all of that remainder must be submerged; and
3. the submerged portions of the remainder must be adjacent to provincial Crown land.

The legislation is silent on the cause of the submerged titled land. It does not matter if the submerged remainder was originally conveyed from the Crown as submerged land, if the submerged land is the result of excavation, or if the submerged land is the result of natural erosion. Under s. 108(7), no indefeasible title is registrable in consequence of a s. 108(2) transfer.

Differences between Sections 107 and 108

There are some differences between these sections. Essentially, s. 107 operates to vest land in the Crown subject to registered third party rights, titles, or interests in minerals, coal, petroleum or gas. Conversely, s. 108 operates to transfer land to the Crown, including mines and minerals, other than those for which a title was registered in the name of an owner not required to sign the plan. The distinction may be without effect.

Exemption Orders

On receipt of the order under s. 108(3) or 108(5.1), the registrar enters the serial number of the order under the miscellaneous notes segment of the indefeasible titles affected by the order.

New Plans

Land Surveyor Should Use “Return to Crown” Designation under Section 107 of the Act

Because s. 108(2) of the Act operates to effect a fee simple transfer of land covered by water from the subdivider to the Crown under specified conditions, the section is a “basket” or “catch-all” provision. Where it appears that s. 108(2) may apply to any part of the remainder of a titled parcel being subdivided, the registrar requires that the owner include the submerged remainder within the heavy outline on the subdivision plan and deal conclusively with the issue under s. 107 of the Act by clearly labelling the submerged area as “Return to Crown”. If the subdivider does not deal with the issue, the subdivider’s title is uncertain. As long as uncertainty exists, the registrar cannot verify that a good safe holding and marketable title exists.

Information Regarding Submerged Land to Be Clearly Shown on Plan Where Natural Boundary Material

Because s. 108(2) of the Act affects only submerged lands within the remainder of a title it is important that the title natural boundary, the present natural boundary, the limit of excavated lands, and fill be shown within both the land dealt with on the plan and within the remainder of a title or titles being subdivided. If this information is not clear, the examiner or surveyor should require the land surveyor to provide sufficient clarity. Where a natural boundary is material, land title examiners and surveyors should ensure that a subdivision or reference plan submitted for deposit shows the location of both the titled and present natural boundaries. In addition, these plans should be appropriately labelled and, in the case of a titled natural boundary, the label should include a reference to the plan that established it.

General Standards for Surveys and Plans

Placement of Heavy Black Line Is Critical in Determining Whether Section 108(2) of Act Applies

The placement of the heavy black line on the plan is one of the critical factors that determines whether s. 108(2) of the Act applies. This is because s. 108(2) only has effect on the remainder of a title that is outside the heavy black line.

Registrar Must Have Enough Information to Determine Title Issues

The placement of both the titled and natural boundaries and the placement of the heavy black line on a plan may not constitute sufficient information for the registrar to determine the title issues. Because s. 108(2) of the Act operates as a fee simple transfer, the registrar is under the general duty to satisfy themselves that a good safe holding and marketable title exists. The registrar must be able to determine from the plan whether or not s. 108(2) will have effect. In order to do so the plan must clearly show the extent of any submerged portions of the remainder and the relation of these submerged portions to provincial Crown land.

CROSS REFERENCES AND OTHER SOURCES OF INFORMATION

See Di Castri, Registration of Title to Land, vol. 1, paras. 136, 201, and 206.

CASE LAW

Rivers and Streams

Where registered subdivision plans show changes in the course of a stream, whether these changes occurred naturally or artificially, the former creek bed remains in the ownership of the Crown (R. v. Ogopogo Investments Ltd., 1980 CanLII 629 (BC SC)).

A river ran through three parcels of land owned by the petitioners, who obtained a declaration that they were indefeasibly entitled in fee simple to the stream beds, subject to the reservations contained in the original Crown grant. Section 108(2) has the effect of extinguishing a subdivider’s title to land covered by water where the covered land (that is, the river bed) adjoins Crown land. If the legislature intended to extinguish title to the bed of a stream flowing through a parcel, it could have said “adjoins or encompasses” instead of “adjoins” (Coniagas Farms Ltd. v. British Columbia, 1993 CanLII 1341 (BC CA)).

Land Adjoining Foreshore

A subdivided area adjoins land covered by water within the meaning of s. 108(2) when it adjoins the foreshore. The term “subdivision plan”, as used in this section, means any plan filed in the past or filed thereafter which had or has the effect of creating a new parcel out of an existing parcel. Therefore, the foreshore adjoining land shown on a subdivision plan filed before the enactment of s. 108(2) has the effect of vesting the foreshore in the Crown (Stautlo Fisheries v. Savage, 1991 CanLII 491 (BC CA)).

Land Covered by Water within Subdivision Area

The plaintiff registered a subdivision plan creating five lots and obtained certificates of title for each lot. Two of the lots were covered by water and located adjacent to a seawalk which was transferred to the Crown as part of the subdivision plan. The court found that the express words of s. 108(2) limit its application to lands covered by water which adjoin a subdivided area. By necessary implication, s. 108(2) does not extend to the subdivided area itself. The adjoining land covered by water to which the subsection could attach was, therefore, limited to any land under water included in the plaintiff’s indefeasible title outside the boundaries of the subdivided lots; in other words, remainders within the plan area. As the two lots were within the subdivided area of the plan and not lands under water adjoining the subdivided area, the plaintiff’s title to the two lots was unaffected by s. 108(2) (Pacific National Investments Ltd. v. Victoria (City), 1996 CanLII 3201 (BC SC), affirmed 1998 CanLII 6492 (BC CA); for further proceedings on related matters, see Pacific National Investments Ltd. v. Victoria (City), 2000 SCC 64; Pacific National Investments Ltd. v. Victoria (City), 2004 SCC 75).