Regulation of Property Use and Regulatory Takings in Alberta
Russell Brown and Graham Purse
Canadian Constitution Foundation, November 22, 2011
Posted here by APRI Dec. 20th, 2011.
This study takes a snapshot of legislation in a single province – Alberta – and categorizes all such regulations upon property use. From easements, to expropriations, searches without warrants, taxes, limitations on causes of action, and seizures, among other restrictions on private property, the limitations on the rights of Albertans to possess property, use it for consumption or further production, exchange it for money or other property, dispose of it, or restrict the access of others to it, are extensive.
Read the full article here
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Radio Program - The New Alberta Landowner Talk Radio
Posted November 30th, 2011.
November 19th, on Alberta Landowner Talk Radio, Lawyer Keith Wilson, Policy Chair at the Alberta Landowners Council, Norm Ward of the Alberta Property Rights Initiative, and program host Kevin Avram, walk listeners through an interesting look at the possibility of a property rights protection law in Alberta.
Download the file here:
Nov. 19th Talk Radio mp3
Alberta Landowner Talk Radio is on air Saturday morning's on the following radio stations:
9:30 a.m. AM1140 High River
11:30 a.m. Q91 Drumheller (AM 910)
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Property rights are essential for a free and democratic society.
By Norm Ward, as appears in The Alberta Farmer, January 16th Issue.
Posted by APRI January 10th, 2012
In Alberta we all need to review this simple statement. Contentious land bills such as Bill 19 and the amended version Bill 23 – Projects Land Assembly Act, Bill 24 – Carbon Capture and Storage Act, and Bill 36 – Alberta Land Stewardship Act have all served to shine a spotlight on the importance of property rights.
The Alberta Government has experienced such a backlash from these land bills that several ministers are now covering the province with a Property Task Force- “asking for Albertans input on property rights and to find out what property rights mean to Albertans.” Before we talk about Albertans views of property we should all be clear on what property rights mean at law.
The 1867 Federal Constitution Act did not entrench property rights. The 1960 Federal Bill of Rights recognizes the right of the individual to enjoy property and not to be deprived except by due process of law. This only applies to Federal, NOT provincial laws. The 1982 Federal Charter of Rights does not include the right to property or to compensation for a taking.
However, we do get property rights through “common law” which consists of past court rulings or precedents and “statute law” which is the Acts and regulations passed by Federal and Provincial Legislature. In the document Regulation of Property Use and Regulatory Takings in Alberta, this is termed – a social consensus. In the past, ruling Governments have understood and respected property rights and the result is legislation that provides for the very foundation of our market driven economy. For example, when you sell cattle you know your cattle are your property and it is understood you will be compensated by the buyer. Previous court precedents and statutes that have been developed over time all facilitate this transaction.
It is also understood that when Government requires property from an individual it is also required to pay compensation. This is called a regulatory taking, and all provinces have some form of an Expropriation Act which is used in these cases. Of particular note is a regulatory taking must be a TOTAL TAKING in order to receive compensation from government.
Given this existing social consensus of common law property, the Alberta Government still decided to use the Carbon Capture and Storage Act to confiscate the pore spaces from your land title. This was clearly a regulatory taking of Albertans property, yet Government chose not compensate.
Zoning of land by government has not been viewed as a regulatory taking, thus there is no provision for compensation. Bill 36, the Alberta Land Stewardship Act is really about land planning and although it does not use the term zoning, there are certainly provisions for restrictions in land use. These partial restrictions are commonly referred to as partial takings. From a land owners perspective a partial taking may sometimes deny the property owner any viable economic use of the property, which really results in a taking by Government without compensation.
Since Canadians have no constitutional property rights, the Property Task Force is touring the province trying to gauge how strong this “social consensus” of common law and statute law really is. Will property owners rise up and bring the Alberta government back to these property rights principles or will Albertans acquiesce to this new form of socialism?
In 2006 several MLA’s encouraged some concerned citizens to form the Alberta Property Rights Initiative. The Initiative is focused on two specific areas – help entrench property rights law both at a Federal and Provincial level and help to
legislate the Property Rights Preservation Bill.
The Property Rights Preservation Bill specifically addresses both regulatory takings and partial takings. It was adapted from similar legislation that has now been passed by many US states, which ran into the same land planning issues Alberta is now experiencing. Instead of eroding common law property rights as we have seen in Bill 36, the proposed legislation would help strengthen rights in an attempt to balance society’s wishes with property owners’ rights.
Many MLA’s are fearful of this type of legislation citing concerns that Government would have to pay large compensation to property owners. The proposed legislation would actually do the opposite, helping to protect taxpayers. An edited excerpt from the bill explains the assessment or “check and balances” as follows:
Assess whether the government action may result in a taking.
Identify the purpose of the action.
Explain why the action is needed and why no alternative is available.
Estimate the potential cost to government and source of payment.
Certify that the benefits of the Government action exceed the estimated compensation costs.
Alberta Property Rights Initiative encourages Government and the Property Task Force to go beyond the assessment of what common law property rights means in today’s terms and to entrench property rights for all Albertans. Let’s truly make Alberta a free and democratic society.
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Archived News 2011
The Alberta Land Stewardship Act Etcetera
Posted April 14th, 2011
I have been involved in property rights for the last decade and a half. Through the Alberta Property Rights Institute doing business as the Alberta Property Rights Initiative, (www.apri.ca) we undertook to forward a Property Rights Preservation Bill and it is still being considered. We were invited to appear before government policy committees, subsequent Ministers and MLAs. Through four years of advising government, there were two stalwarts to our cause, Evan Berger and Ted Morton. We reviewed the Surface Rights Act and the Expropriation Act, and in 2008 after four months we put our work on the respective desks of those who asked for it. An election was called so we didn't hold much hope for results. In 2009 the Surface Rights Act was amended. It is noted that Proprietary Interest is recognised on Crown Lease Land. APRI continues to advise that, as the Alberta Government legislates and deliberates on issues concerning real property, the Provincial government must apply the principle that when the public gains interest over the interest of the property holder, compensation is an obliged component. ALSA is indeed an anomaly in Canadian Law. It actually provides for compensation.
The Land Assembly Project Area Act (2009) provided for acquisition of land for transportation corridors on behalf of the public; market value acquisition with a means to negotiate settlement and the ability to lease back the purchased property until such time as the project was to be undertaken. A two year limitation for action is offered and after that the lands can be reverted back to the original owner.
Throughout these documents ‘Compensation’ is front and centre. Read them. They are on the public record for a reason. Don’t take anyone’s here-say for granted. Read 36 to 42 of ALSA. Tell me what it says to you.
I hope that history doesn’t show, that Albertan’s had an opportunity to entrench protection of their interests in property within their Legislated Acts and turned it down.
Neil E Wilson
Nanton, Alberta.
March 10, 2011
Note to the reader: My positions on these legislations are not meant to diminish the ongoing discussion over the issues over the proprietary interests of property and are the result of my interpretation alone.
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Property Rights: Where did they go?
Impacts of New Alberta Legislation on Landowner Rights.
Posted January 12th, 2011
A must read presentation regarding new legislation impacting landowner,
lease and water rights. Including analysis of Bill 36 -Alberta Land
Stewardship Act, Bill 19 - Land Assembly Project Area Act, and Bill 24
- Carbon Capture and Sequestration Act. What do these bills mean for
landowners?
By Keith Wilson.
Download pdf:
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Archived News - 2010
2010
Landowners Encouraged
to Assert Their Property Rights.
Posted September 25th, 2010
Click to listen...
Hour #1 | Hour #2
|
LISTEN
TO LIZ MARSHALL DISCUSSING OUR CROWN LAND PATENT GRANTS ON OTTAWA TALK
RADIO...
If you would like to hear a recording of the Wednesday August 11-2010
two hour show featuring guest speaker Liz Marshall on Crown Land Patent
Grants, use the links provided. |
Landowners encouraged
to assert their property rights. Land owners are applying in droves for
their Crown Land Patent Grants
(As appears on the Ontario Land Owners
Association website)
You can find the original here.
By: Brett Hanson, The Working Forest
Newspaper 10-08-2010.
Re-posted here by APRI September 25th, 2010
Ontario rural landowners are going back in time in their fight
to preserve their property rights. Land owners are applying in droves
for their Crown Land Patent Grants which Liz Marshall, secretary of the
Ontario Landowners Association and a researcher with the
Association’s Patent Committee says gives landowners the
authority to challenge government legislation that designates land use
conditions and plans without full compensation or regard to the
property/land owner’s rights.
"The Crown Land Patent Grants were established for the settlement of
Canada and created so the land would be granted free. There may have
been certain conditions such as building a home or clearing the land
within three years time," Marshall said. "The letters patent are what
would be considered a contract; they are their own legislation and had
specific reservations for the Crown such as, for example, mineral
extraction and white pine. Everything else was for the owner of the
land and they could do anything they wanted with that land, as long as
the landowner respected neighbouring land, water or air, as expressed
under Common Law.
It also states in these patents that it is for the heirs and assigned
forever. So everything that is in those patents stands and was to
continue on."
Marshall says, it would seem that any legislation created after
existing land patents does not trump original land patents. If new
patents were issued they would be subject to current legislation. The
OLA is using these documents as means of fighting back against
intrusive government legislation such as wetland, endangered species
habitat, tree cutting by-laws, and the Places to Grow Act which are
violations of their property rights.
"We are trying to create the big stick that will make the government
back off. The government is designating people’s property as
wetlands, heritage lands and habitat for endangered species. They
can’t do that, you can’t plan for it if you
don’t own it" Marshall said. "When the provinces were created
nothing was given to the province in that manner because everything had
been conveyed previously. Land was either owned by the Crown or it had
been conveyed to the private freehold land owner."
The movement which began in conjunction with the Muskoka Landowners
Association has quickly spread across the province. Marshall says that
she has personally sent out hundreds of applications by request and has
delivered over a thousand at various association meetings around the
province.
"At the different association meetings to explain the patents,
organizers have expected 50 to 60 people and, routinely 150 to 200 have
attended," Marshall said. "You can expect that there are thousands upon
thousands of people who are actively seeking their land patent grant."
"I am not sure if MPs really understand the land patents or if they do
they are trying not to allow us to move forward. We may have to contact
the Governor Generals office. With the amount of people that are
applying for and receiving their patent it is a movement that is taking
on a life of its own," Marshall said.
Ultimately the issue will have to come before the Lieutenant Governor
or Governor General because the land patents are Crown documents and as
such a contract between citizens and the Crown, Marshall explains. The
Federal and Provincial governments are merely administrators of the
documents.
"A land patent is a contract, a letter patent, a piece of legislation,
a royal proclamation that is specific to the Crown only. Because the
Governor General and the Lieutenant Governors of the province have the
authority to veto, amend, revoke or repeal all pieces of legislation,
except the Letters Patent, that may be the route we have to go,"
Marshall said. "If we are unable to meet with the Governor
General’s office we will have to follow through and start
initiating court cases."
Marshall says even if landowners possess only a portion of the original
land grant they are still entitled to the document. For a $50 fee
landowners can obtain a certified copy of the Crown Land Patent Grant
relating to their property by contacting the Ontario Ministry of
Natural Resources with the lot, concession and original township
information.
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Impacts of New
Provincial Legislation and Recent Case Law Developments on
Landowner Rights and Compensation
Posted March 25th, 2010
This paper is divided into two parts. The first part examines recent
provincial legislation impacting on governmental processes for either
taking rights in private lands or restricting the
uses of private lands and occupied Crown lands. The second part of this
paper examines
recent trends and developments with respect to surface rights
compensation and board
procedures of the Energy Resources Conservation Board.
By Keith Wilson.
Download pdf:
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APRI
To reach APRI team members by email, go here for their email
addresses.
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We invite you to participate in
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Your questions and comments are welcome. We look forward to hearing
what you have to say!
Project Page
Members of APRI will be especially interested in browsing our Projects Page
Here you will find much of APRI's action related material, such as
letters to politicians, work sheets, and work that goes on behind the
scenes as we move forward in our fight to ensure Albertans property
rights are protected by law.
Radio Show Archives
Although recording for the Standing Ground Radio
Show has come to an end, the topics covered are still as relevant as
ever. With a new year ahead of us that is sure to bring as many
challenges as the last, listening to Standing Ground is the perfect way
to get caught up on the property rights issues that matter.
We have put together an archive page of all the past Standing Ground
Radio Shows that is both informative and simple to use.
Standing Ground Radio Show Archive
