Alberta Property Rights Initiative

Land Regulation, Expropriation and Appropriation Laws in Alberta. By Fergus Hodgson

An Analysis and Review of Bills 19 and 36: The Land Assembly Project Area Act and the Alberta Land Stewardship Act. 

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• FCPP Policy Series No. 72 -

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Current Push For The Right To Property

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• APRI's Response to Alberta Draft Legislation on Bill 19 
• The APRI draft Property Rights Preservation Bill

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• APRI's Response to Alberta Draft Legislation on Bill 19 -
• The APRI draft Property Rights Preservation Bill -
• Cover Letter to Ed Stelmach -

APRI's Response to Alberta Draft Legislation on Bill 19

Background

APRI agrees with the need for increased planning and consultation with all Albertans as it relates to new project areas. We are however concerned that all property owners, both surface and subsurface be treated fairly and consistently when a “taking” is required for a public interest. We also recognize the need to avoid unnecessary burdens on the public treasury, while at the same time minimizing unwarranted interference with private property rights.

The existing Expropriation Act and Surface Rights Act, and the Land Compensation Board and Surface Rights Board that are established from these acts, have for the most part served Albertans well in past land issues. As the Province experiences the need to accommodate new and competing land uses it is increasing apparent that present legislation relating to compensation for takings is inadequate. Bill 19 certainly addresses the need for increased consultation and planning on the front end of public projects. However, the issue surrounding compensation for not only takings of property but also regulatory takings of property has not been fully addressed. As Landowner groups around the Province formally debate the draft Bill 19, it is the issue of compensation for regulatory and full takings that is at the centre of controversy.

The following document will address specific areas of concern in Bill 19 as well as possible legislative solutions as it relates to fair and reasonable compensation for public interest takings.

Bill 19 and Draft Amendments

Draft amendments to section 2.1(1) indirectly indicate that a project area may be anything the Lieutenant Governor in council may decide. This continues to leave Bill 19 with extreme powers with regard to takings of property and this area needs to be narrower in focus.

A time constraint of two years outlined in 2.1(2) of draft amendments helps to limit the time private property is in the proposed project area. Although we recognize the time constraints required in the developmental and consultative phase of a project area, one must also recognize the interference this consultation phase has on property values. In limited cases property values in and adjacent to proposed project areas will rise in anticipation of a designation, but in the vast majority of cases these properties experience devaluation during this consultative phase. An example of this devaluation may present itself as a lost opportunity to sell a property during this consultative phase, or a reduced price for the land in anticipation of the land being re-designated. This devaluation may be addressed by shortening the consultative phase, addressing this pre designation devaluation during the land purchase phase, and addressing the proven devaluation of property value should the land in the consultative area not be designated as a project area. Regulations to Bill 19 may partially address this issue, and a change to the definition of expropriation in the Expropriation Act to include a regulatory taking will also be necessary.

It is interesting to note that Aboriginals, although not specifically mentioned in Bill 19 (but noted in other legislation that pertains to any new Act), and Metis Settlements under section (5) are recognized as having “collective” property rights. Changes to the Expropriation Act, to include regulatory takings, may help propel the balance of Alberta’s citizens closer to this recognition of property rights afforded to certain sectors of Alberta society.

Section 3 (1) (f) and (g) limits the use of the Surface Rights Act and the Expropriation Act as it pertains to crown land. This portion of the proposed Act comes from sections 9 and 10 of the Restricted Development Area Regulations under the Government Organization Act, dated 1976. These sections copied into Bill 19 continue to provide concerns for crown land disposition holders. Although it may have been the intent by Bill 19 authors to indicate that once Government has obtained the project area land it need not go through the above mentioned acts to determine compensation for electrical lines, pipelines, etc. within the new project area (compensation was already paid for the private property when the designation was applied and the land is now crown), this section provides contraindicated meaning to disposition holders.

Of concern is whether the limited property value afforded to Crown land dispositions such as a Grazing, Forestry, Recreation, and Hunting leases or a subsurface Mineral lease will be fairly compensated when the property is taken for a project area. Surface leases such as grazing dispositions, are bought and sold at fair market value, and pay land tax. Subsurface dispositions also sell and/or are sublet at fair market value thus indicating a partial property value.

An example of concern on a grazing disposition may be the designation of a pipeline right of way as a project area. The Alberta Government already owns the land used on the grazing disposition and in this case is expropriating the value of the disposition contract as it pertains to the project area. A further example may be a new dam and related flooded land being designated as a project area. A subsurface mineral lease holder may be denied access to mineral extraction on wells now under water. Directional drilling may or may not recover the known minerals and thus compensation in this case will need to be expended on the total minerals lost or the value of the area of subsurface land being denied access.

The above two examples further demonstrate the need to make changes to the definition of expropriation to include regulatory takings.

Orphaned Property and Project Lands

In many cases once project lands have been defined, property will be orphaned from the balance of their existing private property. This may be the case in a freehold mineral property where minerals may not be recoverable under a project area, or it may be the case where the adjacent surface property owner to a project area is unable to access owned land on the other side of the designation. Compensation for orphaned property will need to be addressed.

Since project areas, as defined by the Lieutenant Governor, may be extended to include recreational corridors or the linking of paramount areas of interest close to existing corridors, or the linking of recreational corridors together, it is essential that property owners have continued access to orphaned land on either side of the designation. This has not been the case with current recreational corridors and demonstrates the need to accommodate orphaned lands within Bill 19. The intent is to leave the property holder “whole” when property is taken for a public interest.

Injurious Affection

This is defined as the loss or depreciation in value to the remainder of the land attributable to the actual taking for a project area. In some instances land adjacent to a designated project will increase in value. An example may be land next to a “gasoline alley” or land next to a new recreational reservoir. Unfortunately in most cases land values adjacent to project lands will be devalued. An example of this may be land adjacent to one or more large power lines. If the project lands are wide enough so as not to position large power lines close to property lines of non project areas then this devaluation may be mitigated. If an Edmonton/Calgary project area (corridor) was wide enough to have large electrical lines a couple kilometres away from adjacent property (corridors at least 6 kilometres wide) then this injurious affection would be vastly diminished.

Mitigation of injurious affection as described above then leads to providing compensation for land owners within a circle of the corridor, or alternatively purchasing a wider corridor. This principle if adopted in Bill 19 would set a precedent for the Surface Rights Act as well. Compensation under the SRA needs to be changed to provide compensation for landowners in a circle around industrial development. This is not the current policy and needs to be addressed in the amendments to the SRA in this session as well. The circle drawn around industrial activity, either around a well site, or a series of circles around linear disturbances such as power lines, would provide a diminished compensation the farther out from the centre of the circle. The actual total amount of compensation may increase slightly, but will be distributed to all landholders in the circle, not just the owner of the land experiencing the industrial development.

No Net Loss of Private Property

As private property, either surface or subsurface, is taken for project areas the total amount of crown land in Alberta will increase. One may take the position that the total area of crown land in Alberta shall not increase, and therefore for every hectare of land taken for a project area there must be provision for an equal amount of Alberta Crown land to be sold. This would provide two important principles: 1) the current public/private land ownership ratio shall not increase; and 2) the Alberta public may sell Crown land to help offset procurement costs when obtaining land in designated project areas.

This principle of no net loss has already been effectively used by Federal and Provincial governments as it applies to no net habitat loss for land used for certain industrial development on environmentally sensitive lands.

New Property Rights Legislation

Unfortunately, Alberta is under a severe time constraint as it relates to the implementation of project areas. New pipelines from the McKenzie Delta, CO2 pipelines, electrical lines Calgary/Edmonton, electrical lines to new power generation (wind or nuclear), Edmonton /Calgary rail line, the Meridian dam, and expanded roadways are but a few of the projects that need to use Bill 19. The United States has allocated $15 billion in the present stimulus package to be used for new corridors, some of which are energy related. Our Federal government has allocated monies for short time infrastructure projects, some of which may include the above-mentioned projects. Alberta is but a small player in the overall outlook in a North American corridor structure. These new projects must go ahead now and legislation such as Bill 19 is critical in this time period.

A rush to move these critical projects ahead should not include a rush to diminish property rights of those property owners inflicted with a new project area. Our elected government and we as Alberta citizens have the capacity to provide an environment to move these projects ahead while at the same time protecting property rights. One should not be exclusive of the other.

To that end Alberta Property Rights Initiative proposes the following:

Amendments to the Expropriation Act to include regulatory takings in the definition of expropriation will go a long way to mitigate the diminished property rights Albertans now have. Alternatively APRI has provided a stand-alone property rights bill- named The Property Rights Preservation Bill. This made for Alberta bill has been modified from similar legislation that has now been passed by over 30 US states. These states have gone through a similar situation where there was increasing diverse public interest for the use of private land. This bill was a response to that situation.

As we move farther into a Land Use Framework policy and legislation for Alberta, it is essential that property rights be included in all up front aspects of land planning.

APRI looks forward to discussing and helping the Alberta government with new legislation as it pertains to property rights.

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Property Rights Preservation Bill

Her Majesty, by and with the advice and consent of the Legislative Assembly of Alberta, enacts as follows:

Section 1. Preamble.

1. It is the intent and policy of the democratically elected Government of the Province of Alberta that no private property may be taken from a resident of Alberta for public interest by governmental action without payment of just and fair compensation, in accordance with the meaning ascribed to in these precepts of due process of common law through the Court of Queen’s Bench of Alberta and within the precepts of due process of English common law.
   

2. The purpose of this Act is to require Provincial agencies, guided and overseen by the Attorney General, to evaluate proposed government actions that may result in taking of private property, in order to avoid unnecessary burdens on the public treasury and unwarranted interference with private property rights. It is not the purpose of this Act to affect the scope of private property protections afforded by any common law rights provided to Albertans by way of the English common law prior to the Canadian Federal Constitution enacted in 1982.
   

Section 2. Short Title. This Act shall be known as the “Property Rights Preservation Act”.

Section 3. Definitions. As used in this Act:

1. “Provincial Agency” means the province of Alberta and any officer, physical board, commission, department or similar body of the executive branch of provincial government, and any of the political subdivisions of the province or agencies thereof;
   

2. “Government Action” means:
   

i. existing and proposed rules and regulations that, if adopted or enforced, may limit the use of private property;
ii. existing or proposed license issuance requirements, leasing or permitting conditions, requirements or limitations on the use of private property;

iii. required dedications or exactions of private property;

3. The term “Government Action” does not include:
   

1. the forfeiture or seizure of private property by law enforcement agencies as evidence of a crime or for violations of law;
2. orders issued by a provincial agency or court of law that result from a violation of law and that are authorized by statute;
   

4. “Taking(s)” means the taking of private property by Government Action such that compensation to the owner of that property is required by this Property Rights Preservation Act.

5. “Property” for the purposes of this Act, refers to, and includes all things or possessions that are conveyable through a commercial or bequeathal action.
   

Section 4. Criteria for Determining Takings

1. The Attorney General for Alberta shall develop and provide to provincial agencies fair and equitable criteria to assist in the identification and evaluation of Government Actions that may result in a Taking of private property from any resident of Alberta. The Attorney General shall update the criteria at least on an annual basis to take account of changes in the law and to ensure equity prevails.
   

2. In developing such criteria, and subject to the provisions of subparagraph A. of this Section, the Attorney General shall adhere the following principles:
   

i. if Government Actions shall result in a physical invasion or occupancy of private property or decrease the value or limit the use of property, these actions shall constitute a Taking;

ii. Government Action shall amount to a Taking even though it constitutes less than a complete deprivation of all use or value of all separate and distinct interest in the same private property or the action is only temporary in nature;

iii. the mere assertion of a public purpose is insufficient to avoid a Taking. Government Actions to protect the public health and safety or other wise to further the public interest should be taken only in response to real and substantial public needs and shall be designed significantly to address those needs;

iv. although normal government processes do not ordinarily constitute takings, undue or unreasonable delays in decision making that interfere with private property use shall be a Taking. In addition, a delay in processing may increase significantly the size of compensation due if a Taking is later found to have occurred; and

v. these protections against Taking private property are self- executing and require compensation regardless of whether the underlying authority for the action contemplated a Taking or authorized the payment of compensation.

Section 5. Designation of Responsible Official. The Attorney General shall designate an official within the office of the Attorney General who shall be responsible for ensuring compliance with this Act.

Section 6. Takings Assessment by Provincial Agency. Before a Provincial Agency takes any Government Action, the agency shall prepare a written assessment of the Takings implications of such action, in compliance with the guidelines developed pursuant to Section 4 of this Act. The agency shall deliver copies of this assessment to the Premier of Alberta, the affected landowner, the respective municipal government, the appropriate financial management authority and the Attorney General. The agency’s assessment shall:

1. assess the likelihood that the Government Action may result in a Taking;
   

2. clearly and specifically identify the purpose of the Government Action;
   

3. explain why the Government Action is necessary substantially to advance that purpose, and why no alternative action is available that would achieve the agency’s goals while reducing the impact on the private property owner;
   

4. estimate the potential cost to the government if a court determines that the action constitutes a Taking;
   

5. identify the source of payment within the agency’s budget for a compensation that may be ordered;
   

6. assess the consequential effect on the local tax base for municipal purposes; and
   

7. certify that the benefits of the Government Action exceed the estimated compensation costs.
   

Section 7. Emergency Action. If there is an immediate threat to public health and safety that constitutes an emergency and requires an immediate response, the Takings assessment required by Section 6 of this Act may be made when the response is completed.

Section 8. Source of Compensation. Any award made to an owner of private property from a government agency for a Taking, including any award of solicitor (lawyer) – client fees and cost, shall come from the agency’s existing budget unless the agency has previously disclosed an estimate of the costs to the appropriate financial management authority and funds were included in the budget for that purpose.

Section 9. Solicitor – Client Fees and Cost. An owner of private property who successfully establishes that a government action is a Taking of such owner’s property requiring payment of just compensation shall be awarded reasonable Solicitor – client fees and other reasonable costs incurred in establishing that claim, including reasonable expert evidence required by property owner, in addition to other remedies provided by law.

Section 10, Causes of Action.

1. An aggrieved property owner shall have a legal cause of action against a provincial agency that violates this Act for compensatory damages; including writs of mandamus or prohibition, or other appropriate legal or equitable relief.
   

2. A Municipality may seek relief and cost recovery from the Provincial or Federal Government for any loss or incurred expense resulting from a Taking through government program.
   

3. The Attorney General may bring an action to enforce compliance with this Act.
   

Section 11. Valuation of Property. The effect of Government Action that is a Taking on the fair market value of private property shall be reflected in the assessed valuation of such property for taxes, levies and similar purposes. Section 12. Effective Date. This Act is effective January 1, 2006. 

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The jurisdictions developed because… 

The Fathers of Confederation and indeed the Imperial government of Great Britain were distrustful of centralized political authority. Civil war, beheadings, slow roasting people in iron cages over the embers of their once dwellings, drawing and quartering, public degutting and such, all has a way of instilling such.  It was the experience of the Anglo and Franco that when government or the Crown gains more authority, the citizen looses his. The Magna Carta (1215) entrenched property rights and is still interpreted as a guarantee of liberties including the right to property and not to be deprived of same without compensation. The Instrument of Government (1653 Britain’s written Constitution) established jurisdiction between levels of government and led to the Westminster style of government. The English Bill of Rights provided one with the right to protect his property and not to be deprived of without compensation. In Scotland, the Treaty of Unity of 1706 ratified for their use, the common law of England including the Instrument of Government and the English Bill of Rights. Further evolvement of the Westminster Style of Government provided for more decentralization of political authority especially concerning those issues that were/are considered local and private in nature. In 1864 the Northern Colonies of North America undertook the task of writing a constitutional document called the Quebec Resolutions for the consideration of the Imperial Government of Britain, resulting in the British North America Act of 1867, which further decentralized political authority. It is from this document, spawned from the most brutal civil wars and experiences witnessed by man, that we have our Constitutional Directives today. Constitutions are by definition the instrument by which the citizenry governs their governments (in traditional Westminster style). It was the citizenry that demanded its existence and primarily the scholars of that citizenry authored it. To not recognize the importance of our Constitutional documents does a great disservice to the founders of this nation and shows blatant disregard for the historical suffering endured in its development. To violate our constitution is treasonous to both the people of the past and their scholars and treasonous to Canada and the Canadians that fought for its preservation during the wars of the twentieth century.

On to the matters at hand.

Those involved in provincial and federal governments have told me, that the department of Fisheries and Oceans has jurisdiction in this province at the local level. From what I have studied of our Constitution, It does not. I will explain. 

It is true that the central government of Canada has jurisdiction over “Navigation and Shipping”(91.10 Const.Act 1867), and “Sea Coast and Inland Fisheries” (91.12 Const.Act 1867), but if we look to Schedule 3 of the Constitution Act 1867 we will see where the central government has its’ proprietary responsibility concerning the waters of Canada.

I quote,

1. “Canals, with Lands and Water Power connected therewith.
2. Public Harbours.
3. Light Houses and Piers, and Sable Island.
4. Steamboats, Dredges and public Vessels.
5. Rivers and Lake Improvement."

 

   In short, the central government, akin to any other level of government is to exercise its proprietary responsibility within these parameters only, just the municipal government does not meddle within the purview of the provincial government or the province within the central. Watersheds, seasonal streams, watercourses that are not used for commercial means, and the lands adjacent are matters and properties that are to be addressed locally and privately. Consequently to accomplish this, it is up to the province to make law exclusively addressing these subjects and have the municipal and county governments administer remedial action when confronted with environmental and above river concerns. The province has exclusive authority to make such law. 

I cite…

“In each Province the Legislature may exclusively make Laws in relation to matters coming within the Classes of Subjects next hereinafter enumerated: that is to say, - 

13. Property and Civil Rights in the Province.”

Because the province has exclusive authority over Property and by extension the civil activity upon it, it is clearly apparent that the initiatives, in such cases, are beyond the mandate of the central government. We might consider the activity of other central government agencies and their involvement in local and private issues. The CFIA and its regulations that make every kitchen in Canada suspect, Kyoto initiatives, education programmes, health care, Environment (SARA) etcetera, all symptoms of ever-gluttonous tendencies of governments to centralize the control of every activity the individual might legitimately pursue. 

We might ask, ‘how did this get so far away from the intended purpose of government?’ The answer… ‘We let them.’ We did little while the supreme law of Canada was and is being violated. We do not take the time to know what we have as an instrument, to govern our governments and we would rather let them at it because we have not felt the full lash of complete tyranny. To deter this activity, it requires that we elect people who understand what it means to have some influence over those issues that affect us on a daily basis and also how their station is defined constitutionally. If we don’t take the necessary steps to curtail the status quo, then we expect to suffer the pillages of the 13^th, 14^th and 15^th centuries because rulers and people haven’t changed much. At the very least this country will not endure, for it is non-compliance to our constitution that fuels the fire of succession and revolution. Precious few wars were not fought over jurisdiction and history will repeat itself again and again. Those who aid and abet in non-compliance of the citizens’ right to govern governments are simply agents of this country’s demise. Folks, elect otherwise. Next time you consider voting for any provincial or federal candidate, first ask, ‘Have you read and do you understand the entire Constitution of Canada?’ Vote accordingly. Those jurisdictions are vital. 

Neil E Wilson  February 2008

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