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

Review By John McLaren

November 4, 2013

BC Studies no. 163 Autumn 2009  | p. 143-5

In recent years both imperial historians and colonial legal historians have begun turning their attention to the networks at play within the British Empire and the transmission of information and ideas within the imperial system.[1] The emphasis in this work has been as much, if not more, on the channels of communication between and among colonies as between the latter and the metropolis. Professor Taylor’s account falls into this genre, more particularly into those studies that track how legal ideas and institutions with their origins in one geographic area of the Empire were translated to others, whether by the physical movement of individuals or by long distance communications within the imperial system.

The prospect of reviewing a work on registration of land titles, even its history, might not engender enthusiasm in every reader’s mind. Any anxieties I may have had on that score were quickly dispelled. By combining sound and insightful biographical work on the major proponents of the Torrens system of title registration, careful tracking of how the idea of guaranteeing indefeasibility of title in a systematic and relatively simple way by treating the latest registration of an owner’s title as dispositive of ownership spread from its Australian origins to other colonial and national jurisdictions, with the detail of the legal regimes themselves, Professor Taylor has produced a work that is both well crafted and engaging. The author makes no bones about the fact that this system of guaranteeing title is the best devised within the Anglo-American legal world. However, good ideas, even legal ones, do not spread without human agency. The extension of the system devised in the late 1850s by South Australian official, politician, and landowner Robert Richard Torrens within the Australian colonies was not difficult given their geographic proximity, the common problems they faced in dealing with title in hyperactive markets for land, and the relatively short period of European settlement in that land mass. Moreover, the Australian political psyche was less impressed with arguments based on the need to follow Mother England’s lead on legal procedures, in particular when they appeared arcane and unnecessarily complex, than was true of that in some other settler jurisdictions.

The system’s translation to North America, and especially Canada, proved more challenging. Not surprisingly, the first Canadian jurisdictions to adopt a form of Torrens were Vancouver’s Island and British Columbia, newly founded as colonies and sparsely settled, in which there were few, if any, vested interests in the Byzantine structure of title searching that bedeviled English conveyancing law. In these histories the initial impetus for adoption seems to have come from personal connections, the relationship between George Carey, the first attorney general of the island colony, and Sir Hugh Cairns, the eminent English barrister, law officer, and judge who was an advocate of the system. The presence in the colony of J.F. McCreight, who had practised at the Victorian bar in Australia in the 1850s, and who was well aware of the campaign in the colony of Victoria in favour of Torrens registration, may well have assisted in the process of persuading local politicians and their constituents of the superiority of that system.

Interestingly, Taylor notes that events in British Columbia seem to have had little or no direct influence on campaigns for the establishment of the system in Ontario and the North-West Territories, which got under way in the 1870s. Plausibly, he ascribes this to the cultural and economic remoteness of the west coast possessions from the rest of British North America until the 1880s. The history of the attempts to bring the Torrens system to central Canada and to the vast prairie lands of the west – the North-West Territories and the Province of Manitoba – is largely an account of the activities of the Canada Land Law Amendment Association, a well organized and astute pressure group that vigorously lobbied the relevant governments to adopt the Torrens system.  This alliance included representatives of money-lending institutions and interested professionals, including lawyers who understood the benefits of registration as a guarantee of the indefeasibility of title. Its success in the west, where settlement conditions were closer to those in Australia and frontier British Columbia, contrasts with political and professional resistance and bureaucratic lethargy in Ontario. As a consequence, unlike western Canada, where the system took off in the decades after its introduction, in Ontario it was only in the late twentieth century that the system began to extend beyond regional application, primarily in more remote and in rural areas, and to expand throughout the province. Nova Scotia and New Brunswick have recently adopted the system, which now operates in seven provinces and the territories.

Taylor is careful to examine the claims made of other influences behind the Torrens system in both Australia and Canada, and to separate out and evaluate the various motives prompting its advocates. Based on this close analysis there seems little doubt that, within the world of European settlement, where the Torrens system took root it served the purposes not only of its commercial champions (the mortgage companies who stood to benefit financially from a simplified system of title registration) but also private property owners (an expanding group in settler populations) who were spared the expenses of lengthy title searches and the worry of less secure registration systems. Moreover, apart from the infrequent blip associated with the occasional difficult personality in the land titles bureaucracy and miscues in organizing access to the system, it has worked consistently well in the jurisdictions that have adopted it.

Taylor demonstrates the value of comparative colonial legal histories as a means of understanding the borrowing of legal concepts and institutions between colonial and postcolonial possessions and, in his lively engagement with his particular topic, points to other possibilities in cross-imperial legal studies. The Law of the Land is a valuable contribution to the literature.