Defeasibility of Mineral Interests under the Alberta Torrens System

Abstract

When Sir Robert Torrens designed his system of land registration, one of his paramount objectives was the indefeasibility of the certificate of title, coupled with an assurance fund to compensate those persons who suffered loss through the misfeasance of the system or through registrar's error. In the following article, the authors, by referring to statute and case law, critically analyze the system which, in relation to surface titles, is undeniably successful, yet in relation to mineral titles, is sadly deficient. The authors review the various exceptions to indefeasibility—fraud, prior certificate of title and misdescription, as well as the s. 64 implied exceptions. The rationale of the assurance fund, and the reason for the failure of the fund to serve as the compensatory feature envisaged by Torrens, is examined. The procedure involved in complete historical search of the mineral title (both as to unpatented Crown lands and freehold lands) is described in detail, including specific problems such as "refills", tax forfeitures, and court orders; the value of mineral cer tificate; and the various branches of the government which must be consulted. As well, the Land Titles Office practice of maintaining "file" of confidential information (generally inaccessible to lawyers) is criticized. The authors then look at the question of determining ownership of mines and minerals under lying bodies of water. Three aspects of the law of riparian rights are con sidered—the ad medium filum rule, accretion, and avulsion. The problem of determining mineral ownership under road allowances and the unique statutory provisions regarding railway lands and Soldier Settlement Lands are discussed, Finally, the authors evaluate the purpose, use, and effect of the registrar's caveat.