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Concluding Remarks

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 story, but I do not wish to let it be thought that such things can simply be forgotten or taken for granted. Without them a functioning Torrens system is not possible.

This study of a major reform in a private law that migrated from Australia to Canada could be replicated in the reverse direction in other cases. Because its oldest provinces were older than the oldest Australian colony – by many decades if we discount the convict origins of New South Wales and look instead only at its time as a free settlement – Canada was in many respects a model for Australia, in constitutional development in particular. Thus the achievement of responsible government in the Province of Canada in the late 1840s was held up for emulation by those in Australia who sought the same thing for themselves; later, after 1867, one repeatedly comes across calls in Australian newspapers for a local equivalent of Canada’s Dominion Parliament.

Nowadays, with the growth of the Internet, globalization, and so on,

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it excites less surprise to see solutions from one country received into the law of another. Even today, however, this occurs perhaps less frequently than a non-lawyer might expect, owing to the difficulties that often arise in transplanting between legal systems that in many respects may still vary widely, both in the detail of rules and more broadly in inherited habits of thought and reasoning – to say nothing of variations between societies as a whole. In the nineteenth century barriers of distance and barriers to understanding were much greater. Even the time needed to find out about the law in another country could be enough to deter its adoption elsewhere, again to say nothing of the need to examine the broader context in which that law operated. We have seen how barriers in parts of Canada, most noticeably in Quebec, were and are still too high for the reception of the Torrens system to take place there, even though this has occurred in other provinces and, looking at the matter objectively, it would probably benefit Quebec to adopt the Torrens system as well.

Despite the improvements in communications that have occurred since the nineteenth century, conditions were in some respects more favourable at that time for the adoption of Australian law in some parts of Canada (and vice versa) than they are today. The settler societies within the British Empire shared many characteristics and a strong sense of affinity. Movements of people between them were still very common as there were no internal barriers owing to the common citizenship; and an emigrant from England might try several colonies before finally settling down in one. For example, in chapter 3 we encountered J.F. McCreight, later British Columbia’s first premier, practising as a lawyer in the Australian colony of Victoria while it considered the introduction of the Torrens system. Because of the common citizenship, a solution adopted elsewhere in the Empire did not count as ‘foreign’ in any way: all involved were British subjects and the overall law was more or less similar in most parts of the Empire – leaving aside exceptional cases such as Quebec (and other jurisdictions, like South Africa, with a non-English legal inheritance). Furthermore, there was the central bureaucracy of the British Empire in London, which knew about all colonial laws everywhere and could share good ideas around, something which we saw greatly aided the Torrens system’s expansion into British Columbia and was also of use in the other provinces.1

From this point of view, the Torrens system arose at a propitious time for its own spread. The bonds of Empire were still strong, both legally and in people’s hearts and minds; communications were improving

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164 The Law of the Land

thanks to the telegraph and the steamship; with the growth in the number of white settler societies in the Second British Empire in the first half of the nineteenth century, there were now many jurisdictions in which land was regularly bought and sold by a fairly broad cross section of society. Most male landowners also had the vote in such communities, so many people with a share in political power were faced with, and interested in finding a solution to, the problems presented by the antediluvian English law of conveyancing that those communities had inherited. Given the crying need for reform everywhere, it was not very surprising that the first colony that achieved some considerable improvement – even if not a perfect solution – found its law gratefully copied in many other imperial jurisdictions.

From an Australian point of view, the most noticeable thing about the adoption of the Torrens system within Canada is how long it took once the system became known there. In Canada, the story starts on Vancouver Island in 1861 and has not finished even in the early twentyfirst century – the adoption of the Torrens system being in various stages of completion in the various provinces and not begun at all in three. On the other hand, all the Australian colonies, as they then were, had adopted the Torrens system by the mid-1860s, except what was then the small, remote, struggling colony of Western Australia, which followed in 1875.

This difference should not be attributed to lassitude on the eastern side of the Pacific, however – or at least not wholly. No one would claim that politicians always adopt necessary reforms with sufficient speed, in any country. But there was a particular reason for Canadian tardiness in this matter which is only dimly apparent to the observer from afar, until he visits Canada: it is the greater variety among its parts, even those that share the inheritance of the common law and the English language.

With the exception of Western Australia, all the Australian colonies were quite similar in composition by the mid-1860s. That is a generalization that will not bear undue weight. South Australia, for example, had had no convicts, and a large German sub-colony in its midst. Victoria suddenly became unbelievably wealthy during the 1850s as gold was discovered and mined there. But – recalling the fact that free settlement in New South Wales did not seriously commence for some decades – the Australian colonies, as communities of land owners, were founded largely at the same time and had similar social, demographic, political, and economic features. The comparative homogene-

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Concluding Remarks 165

ity of the Australian colonies meant that the Torrens system could be introduced into all of them in roughly the same way: there was still a good deal of land ungranted by the Crown, and land that had already been granted was likely to have been granted in the reasonably near past, so that less time existed for titles to become obscure.

It was otherwise in Canada. Sometimes even basic information about the state of the law in one part of the country was little known in others. The adoption of the Torrens system in Vancouver Island and then the whole of British Columbia had little to no influence to the east, even after British Columbia joined Confederation, partly because of simple ignorance of what was going on in other provinces. Another reason was that in Ontario the circumstances under which the law operated were completely different. In that much older province it was considerably more difficult for the state to give a guarantee of titles, and for many owners to show that they were even eligible for such a guarantee because their titles were in a sufficiently good condition.

That the Torrens system has nevertheless slowly but surely conquered most of Canada is a testimony partly to its superiority, but perhaps even more to the defects of the old system. The basic ideas behind the Torrens system are really incredibly simple, so simple that they could be invented by a non-lawyer who was able to cut through the Gordian knot of complication and difficulty that the legal profession had created and in many places, including some in Canada, attempted to defend.

Lack of complication has some demerits as well. For example, most versions of the Torrens system leave some significant questions resolved by only the vaguest of rules, such as what degree of sharp practice constitutes fraud and thus enables an entry on the register to be reversed for that reason. As we have just seen, in Nova Scotia a variation on the usual rules has been adopted with the aim of identifying more clearly and more justly what constitutes fraud, and it will be interesting indeed to see how that turns out as the courts apply it to cases that arise.

Whatever rule is adopted on that or any other topic will inevitably contain some elements of uncertainty. It is not possible in any area of law to draft a rule that will operate with certainty all the time. But under the more traditional rule about fraud the courts are perhaps too often required, in individual cases, to fill in the gaps and work out their own definition of fraud with regard to the aims of the system and the clues given in the statutory text, and must occasionally accept conduct as legal even though it falls far short of ideal. Filling in gaps is, how-

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166 The Law of the Land

ever, something that common-law courts are used to doing in many areas of law. It is also the case that there is also no perfect conveyancing system, and no system will prevent fraud in all cases, avoid all disputes, and provide complete fairness all the time. For all its faults the Torrens system is a great improvement on the old chain-of-title system, and one of its great virtues is its comparative simplicity.

The success of the work of the Canada Land Law Amendment Association across Canada is in part a tribute to the power of the lobby group. I have attempted to defend the Association from the claim of narrow grasping self-interest, although like most lobby groups its members were interested in the adoption of the reform they advocated. The record of the legal profession in Canada is also mostly an honourable one: lawyers in Manitoba, with one notable exception who made the front page of the newspaper, were almost completely in favour of the Torrens system; they assisted it in gaining its original Canadian foothold in Vancouver Island; and lawyers were also prominent, along with the moneylenders, in the work of the Canada Land Law Amendment Association, which was directly responsible for bringing the Torrens system to three further present-day provinces.

The Association and the lawyers were not, however, conducting a conversation only among themselves and with bureaucrats. One of the most remarkable things about the second half of the nineteenth century, from the point of view of a lawyer, is the enthusiasm and depth of knowledge with which technical details of land titles law were debated in the public space even by non-specialists. It is normally difficult enough nowadays to awaken even many law students’ interest in the refinements of the law of land registration, let alone that of the general public! But in the nineteenth century there was a need for reform that was apparent to most members of the public who came into contact with the old system. This was, moreover, something that all parts of Canada had in common with each other and with the Australian colonies, because land ownership was, in each society, widely distributed among the populace. The Torrens system was the answer, in most parts of Canada as in Australia, to the demands of the growing class of landowners for a better way.

It was technology, however – the computer – that finally delivered most of Ontario as well as Nova Scotia and New Brunswick to the Torrens system at the close of the twentieth and opening of the twenty-first century. It is an extraordinary testimony to the virtues and simplicity of

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Concluding Remarks 167

the basic principles of the system that 150 years after its invention, it is so well suited to modern technology. But rapidly changing technology will also present a challenge both to administrators and to legislators in keeping the Torrens system up to date. In this respect Australian jurisdictions can learn from Canadian jurisdictions: for example, Queensland’s legislation and practice relating to computerized Torrens registration are modelled on British Columbia’s.2

Technology will also be the key to coping with the challenges of real estate fraud, as is exemplified by Susan Lawrence’s and other recent Ontario cases mentioned in the introduction. Computer-based systems of registration both present new challenges to the traditional paperbased Torrens system and enable new solutions to age-old problems such as fraud to be developed. For example, computer systems, if properly designed, can ensure that many would-be fraudsters cannot even have access to the register, and that unusual transactions are identified and investigated further. Imaginative solutions to problems of real estate fraud can easily be suggested. For example, homeowners could be automatically informed if their property changes ownership on the register without their also having changed their address on the electoral rolls.3 With sufficient imagination, diligence, and dedication on the part of its administrators, the Torrens system will be able to continue to be strong in Canada, and wasteful private title insurance on the American model will not be needed.

Another task for the future will be the harmonization of the provincial Torrens statutes. As in Australia, there is in Canada much variation among the provinces’ and territories’ Torrens statutes. Although the Canadian provinces are more heterogeneous than the Australian states, much of the variation in Canada too is random, unrelated to any differences between the societies that the law serves and not justifiable. Such differences add to transaction costs and constitute a barrier to interjurisdictional commerce.4 A greater measure of uniformity would be desirable. In 1993 the governments of the five provinces and two territories that then possessed versions of the Torrens system appointed a Joint Committee on Land Titles to prepare model legislation for Canadian Torrens systems.5 This has not been adopted except on certain Métis settlements in Alberta, in an adapted form.6 However, some distinct traces of its influence are detectable in Nova Scotia’s statute, the newest in Canada. But given Canadian diversity and the consequent fact that Nova Scotia, unlike four of the five older Torrens provinces,

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168 The Law of the Land

must devote significant attention to the task of conversion, it is not surprising that that province’s statute could not follow the proposed model completely.

It may well be that, with the exception of the special case of Quebec, Canada will in due course be solely Torrens. That would require the completion of conversion in all nine common-law provinces, and that in turn would require two provinces (Prince Edward Island and Newfoundland and Labrador) to adopt the system in the first place. But it can be said now that the Torrens system is the dominant system of land titles registration in common-law Canada as a whole. Thirty or forty years ago it could almost still be treated as a solely western Canadian phenomenon; it is not so now. Thus Canada has again attested its willingness, in dealing with assets of great importance to the public such as land, to carry on aspects of its corporate life through agencies of the state as the representative of the whole community, rather than through private enterprise such as title insurance companies.

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