Articles and Recommended Reading

 

What is the Government Agenda?

The War on Canadian Agriculture

The Preservation of Knowledge and Proprietary Interest

The Consequence of losing the Proprietary Interest in Property

Reference Articles list (various publications)
A reference list of property rights related articles from various publications across Canada.

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What is the Government Agenda?

 

By Neil Wilson, Chairman of the Alberta Property Rights Initiative.
February, 2008.

We made a pitch regarding compensation for partial takings, to keep the land owner as whole as possible in the spring of 2007 to the provincial Cabinet Policy Committee for Resources and the Environment. The CPA commissioned the APRI group to review the Surface Rights Act . (See newsletter) We did so throughout the summer as well as reviewing the Expropriation Act because it establishes the rules for surface expropriation. We made consequent proposals as to how the Acts might be revised.

That following summer Ray Danyluk’s (Minister of Municipal Affairs and Housing) office was reviewing the Municipal act for purposes absolutely contrary to our presentation earlier in the spring. See section 534 below.

Text as it read in 2006
Public works affecting land - 534

The 2007 amended text
Public works affecting land - 534

(1) A person having an interest in land that is adjacent to land on which a municipality has constructed or erected a public work or structure is entitled to compensation from the municipality for loss of or the permanent lessening of use of that person’s land caused by the public work or structure.

(1) In this section, “injurious affection” means, in respect of land, the permanent reduction in the appraised value of land as a result of the existence, but not the construction, erection or use, of a public work or structure for which the municipality would be liable if the existence of the public work or structure were not under the authority of an enactment.

(2) As soon as possible after the construction or erection of the public work or structure is completed, the municipality must publish a notice in a newspaper circulated in the municipality that

(a) identifies the public work or structure,

(b) gives the date of completion, and

(c) states that claims for compensation under this section must be received within 60 days after the notice is published.

(2) Within one year after the construction or erection of a public work or structure is completed, as signified by the construction completion certificate, the municipality must deliver or mail to every owner of land that abuts land on which the public work or structure is situated, and place in a newspaper circulating in the municipality, a notice that

(a) identifies the public work or structure,

(b) gives the date of completion, and

(c) states that claims for compensation under this section must be received within 60 days after the notice is published in the newspaper.

(3) A person is entitled to compensation under this section only if the person files with the municipality a claim within 60 days after notice of the completion of the public work or structure has been published in the newspaper.

(3) Subject to subsection (4), an owner of land that abuts land on which a public work or structure is situated is entitled to compensation from the municipality for injurious affection to the owner’s land.

(4) The claim must state the amount claimed and the particulars of the claim.

(4) An owner of land described in subsection (3) is entitled to compensation under this section only if the owner files with the municipality a claim within 60 days after notice of the completion of the public work or structure is published in the newspaper.

(5) The amount payable as compensation under this section may not exceed the amount of the difference between

(a) the appraised value of the claimant’s land prior to the construction or erection of the public work or structure, and

(b) the appraised value of the claimant’s land after the construction or erection of the public work or structure, together with an amount of not more than 10% of the amount of the difference.

(5) A claim must state the amount claimed and the particulars of the claim to prove the claim.

(6) If the municipality and the claimant are not able to agree on the amount of compensation, the amount of the compensation must be determined by the Land Compensation Board.

(6) The value of any advantage to a claimant’s land derived from the existence of the public work or structure must be set off against the amount otherwise payable as compensation for injurious affection.

(7) No compensation is payable for the loss of or the permanent lessening of use of land caused by

(a) the construction of boulevards or placement of dividers down the center of a road for the purpose of channeling traffic, or

(b) the restriction of traffic to one direction only on any road.

(7) No compensation is payable for injurious affection caused by

(a) the existence of boulevards or dividers on a road for the purpose of channeling traffic, or

(b) the restriction of traffic to one direction only on any road.

(8) No action or claim based on the loss of or a permanent lessening of use of land because of the construction or erection of a public work or structure by a municipality may be made except under this section.

(8) No action or claim for injurious affection may be made except under this section.

 

(9) If the claimant and the municipality are not able to agree on the amount of compensation for injurious affection, the claimant and the municipality may agree to have the amount determined by binding arbitration under the Arbitration Act.

 
 

(10) If the claimant and the municipality do not agree to have the amount of compensation for injurious affection determined by binding arbitration, the amount of compensation for injurious affection must be determined by the Land Compensation Board.

 

(11) Subject to the regulations made under subsection (15), the Land Compensation Board may follow the practices and procedures used under the Expropriation Act.

 

(12) Except in exceptional circumstances, the Land Compensation Board may not award legal costs on a solicitor-client basis in respect of a proceeding under this section.

 

(13) An appeal lies to the Court of Appeal from any determination or order of the Land Compensation Board under this section.

 

(14) Section 37 of the Expropriation Act applies to an appeal under subsection (13).

 

(15) The Minister may make regulations

(a) respecting the practice and procedure of a proceeding before the Land Compensation Board under this section;

(b) subject to subsection (12), respecting costs that may be awarded by the Land Compensation Board in respect of a proceeding under this section.
 

(16) This section applies only in respect of public works and structures for which a construction completion certificate is issued after this section comes into force.

You will notice that by removing the term “use of land”, a criterion for compensation as it was in 2006 no longer exists, as it pertained to partial takings. In the mind set of APRI, this is not acting in good faith nor in the interests of Property owners.

Government at the provincial level can now arbitrate land use and compensation outside of municipal input. Please recognize that the control of the properties within our communities has been further centralized and the citizenry has once again lost authority over those issues regarding development within their localities. You will also notice that there is real potential for government to remove your use of land without paying for it. You still get to own and pay taxes on it but you just can’t use it to the fullest extent. Land can be reassessed through various drawn out processes, but in Alberta land is a hot enough commodity that it would not likely affect your tax burden. If a provincial trailnet cuts your property and the landowner has to securely fence it, and he does, and assume all of the liabilities including insurance, weed control, guarantee of safety for the users, and he does, the landowner cannot access his property through the trailnet trail as it allows a “means for the public to be put at risk”… a gate.

Likewise if the provincial government were to apply a species conservation action to your property and remove the use of that portion from you the landowner, the landowner is in the most enviable position to pay taxes on something he cannot fully use. I’ll quote an entry to our blog. “Oh Canada the States Home and Native’s Land”.

What is the government agenda?
APRIPRES

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The War on Canadian Agriculture

 

By Neil Wilson, Chairman of the Alberta Property Rights Initiative.
January 22, 2008.

In the past twenty years I have involved myself in the service end to the agricultural industry. From buffalo to tomatoes I get to witness first hand, the trials of various divisions of agriculture. Each of them has a common complaint, ‘too much government’. In most cases, government controls the marketing, the movement and the money, save for the huge multinationals that clean up what’s left. The most threatening activity of government however, is the actual control of the land. We might rehearse how this is done. I might quote in part from the Honorable Howard Hilstrom, (PAST) MP (Selkirk-InterlakeManitoba) and the (PAST) Alliance critic to agriculture. This man points to the various past and current central government activities or inactivities, and lists them as liabilities and encumbrances to the agriculture industry. Emphasis, addendum and parenthesis added.

  1. Our government is unwilling to contest the excessive foreign subsidization that puts Canadian farmers at an extreme disadvantage. (Inactivity)
  2. The exclusive urbane consultation in the development of cruelty to animals, legislation. (Activity)
  3. The lack of compensation to agriculturalists for government programs that impinge upon agricultural activity. Emphasis added. E.g. Species at risk Bill C-5 ++. Trailnet etc. (Activity)
  4. Ratification of the Kyoto Protocol, without NAFTA partner compliance. (Activity) Again puts Canadian farmers at a disadvantage compared to other North American agriculturalists.
  5. Heavy-handed fish habitat regulation enforcement of inland waters. (Activity) Creates uneven playing field between natives and those considered not. Inhibits local governments activities as they address infrastructure needs. Imposes punitive, unreasonable regulation without compensation.
  6. Excessive bureaucracy, inefficiency and the lack of flexibility from federal agencies such as the Pest Management Regulatory Agency and the Canadian Food Inspection Agency. (Activity and inactivity)
  7. The policies of the Canadian Wheat Board that, prevent farmers from entering into niche markets and, encumber value added processing and, disallow innovative marketing, as well as its refusal to improve grain handling facilities and transportation. (Activity and inactivity)
  8. Potential enforcement of regulations concerning Ammonia as a fertilizer and unsubstantiated criteria to support such.

I might add further to the list.

  1. Government acceptance of foreign treaties and pacts without citizen consultation at the expense of Canada’s Sovereignty.
  2. Precedence set by government that allows entry to private property through supposition rather than fact or legitimate warrant. (Activity - Bill C-68 and C-5, C-27)
  3. The use of criminal law to circumvent the jurisdiction of the provinces in the matters concerning property and civil rights. (Activity, e.g. all of the above)
  4. Conservation groups, gaining vicariously, the authority to levy tax on municipalities. (Activity)

Canada is touted as the most regulated nation in the so-called industrialized free world. One would think that Canadians do not have the good common sense to accomplish any task without first consulting some central/provincial government bureaucrat. Slowly but most assuredly we are loosing the right to conduct ourselves in any manner at all that is not first defined by some order of government. The people of this nation have succumbed to serve the state without a sigh. If one or a group did protest, our short left-legged national media would probably portray it as cruelty to something; after all it is not politically correct to challenge the liberal thought. Liberal, libertarian?

At some point in time, government will spend so much of its resources to control the land farmers occupy (not own) that it will exceed the capabilities of the citizenry to provide the tax dollar to carry out the regulatory task. At that point, Canada’s farm community will be vulnerable to multi-national corporation takeover. Canadian farmers might be the employed stewards of a multi-national corporate land base and at the mercy of further foreign dictates. I have often wondered if this is of intentional design. I wonder how many people think ‘Aw, that’ll never happen’? Look no further than the crippling effect of the 1980’s NEP. and who now owns or controls most of our energy resources. Who’s pushing the government buttons anyway? ‘Sure isn’t the land owner, urban or rural’.

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The Preservation of Knowledge and Proprietary Interest

 

By Neil Wilson, Chairman of the Alberta Property Rights Initiative.

If we make the assumption that Municipalities are the agents of the Provincial government as provided by Alberta’s Municipal Act, to manage the development and treatment of real property within their jurisdictions, and we also understand the current tax structure within the Province as it supports these activities, we can further assume that the Province to much degree, is responsible for the inherent cost of implementing land use regulation through the Municipal Governments. We also recognize consultation between the Provinces and municipalities as necessary.

The Municipal Governments are in the best position to recognize the needs and concerns of their respective jurisdictions, but every effort must be made to decentralize the authority over the land use policies to the most local level. It is the ratepayers within these jurisdictions that have the greatest potential to lose or gain. Likewise, the people of local communities must address the growth potential/pressures, environmental sustainability, and future economic consequence of their activities.

Those on the land have an historical reference as to how their particular properties are vulnerable from outside influence. They are intimately aware of the fragility of their immediate environment. Their activities, if they are to be sustainable, must reflect responsible management. Many times it is the consequence of generation-to-generation knowledge development that improves the productivity, sustainability, and overall environmental health of the properties. To not recognize this wealth of effort and knowledge, and dismiss it as dispensable would be grievous to the well being of the land, economy, environment and society. This wealth, which might be defined as the, ‘agricultural knowledge bank’, is continually modernizing as the agriculturalist seeks better means to carry out the business of feeding people. It is our responsibility to accommodate, not impede, continued responsible development in this regard.

To not compensate for the impingements upon those proprietary interests and knowledge based activities of the agriculturalist, would do a grave injustice not only to the immediate landowner but also to society.

A society that fails to recognize the inheritance of the accumulated knowledge and proprietary interest, both in failures and successes, will not long endure. We seem to be bent on making much of the mistakes of other nations who centralized the authority over property.

We must not put those, most able to make positive contributions to our well being, at a disadvantage. When we as a society take from them either through regulation or expropriation, partially or fully, compensation must be part of the equation.

Recent amendments to the Municipal act, specifically Section #534 where the lack of the use of property was dispensed with as criteria for compensation as it read in 2006 is an indication that government might not take the property but has the nasty tendency to take the use of it. They haven’t seen the picture yet.

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The Consequence of losing the Proprietary Interest in Property

 

By Neil Wilson, Chairman of the Alberta Property Rights Initiative.

I will attempt to make the argument that, little separates those living in the industrialized nations from those that are unfortunate enough to live in destitute or third world nations. My premise is from distant observation and assumption, as I have not lived in or attended any of the less fortunate countries. What I have learned is of other’s experiences from their accountings and observations regarding the ownership (or lack of) of land in such states.

From considerable study it is apparent that we do not absolutely own our lands but have a proprietary interest in land to the extent that interest was purchased or bequeathed and we have control of that particular interest for our legitimate use and eventual conveyance. We are as yet fortunate to have the environment in which we can maintain and transfer/convey proprietary interest in property.

A taking has occurred and if interest is not purchased or freely traded, I believe, the forced acquisition is tantamount to theft.

I ask the question; ‘What remains when a citizenry/entity finally looses the security of proprietary interest in property to the extent that it cannot be leveraged against?’ I will leave to the reader to draw his/her own conclusion in respect to my argument.

I assume from the perspective of the citizen or the property owner that if property has lost it’s leverage value because of impingement or caveat at no compensation, the potential economic activity of this property will be equally adversely affected.

If the impingement results in stifling the legitimate activity on or with the property and results in a reduction in productivity or aesthetic value, the same can’t help but occur. The property then, becomes a liability, and is observed as such by financial institutions.

Therefore: If the proprietary interest in the property has diminished, the productivity has diminished, the monetary value has diminished, and the leverage potentials have diminished, through a (full or partial) taking that was not compensated, then the property itself becomes a liability. ‘Surface Rights’ boards In Alberta have yet to address this fully.

From the viewpoint of a lending institution, we can assume there is less chance to procure funds through traditional leverage means, because others have gained

enough proprietary interest in the property to reduce the security.

Therefore uncompensated gaining of proprietary interest is counter to economic activity. (E.g. a partial taking for environmental or public purposes.)

From my experience lending institutions do not chance a secured loan when caveat is involved. This results in a community loss of economic activity and represses the potential for the original proprietor to obtain full value for operation, relocation or conveyance purposes.

From the standpoint of a realtor, when a particular piece of land sells for less in a community, the values of adjacent properties usually follow suit. Again the community looses the potential economic activity and local services and business suffer.

In many cases, farming, ranching, industrial and resource entities have evolved through generations of effort. To ignore that heritage and annihilate the product of these generations does little to inspire confidence in any of these industries. That will have long term effects down the road. Last I checked; we still need to eat, build, drive and endure the seasonal elements.

When rural/urban property values decrease, the tax base and ability to support local infrastructure does likewise. Such circumstances in other parts of North America forced the closing of schools, reduction of public service and the forced relocation/centralization of the public services and businesses. The urban folks could not endure the increase in property tax needed to reclaim the revenue loss of the municipalities. Again, property became a liability.

If investments are made by having confidence in an entity’s activities associated with their proprietary interest in a specified property, what happens to investment companies when these entities loose control of their holdings through partial or complete takings? What happens to the monies that went to support the activities?

Can we assume it is crucial to preserve the right to proprietary interest in property and not be deprived of it without full and timely compensation? I think so…

Finally: We do not own property (urban or rural, resource based or industrial) to leave something less to the next generation. The perpetual diminishment of property values through the erosion of proprietary interest will eventually leave the citizenry destitute either by over taxation or the inability to extract fair value from the activity associated with it, or its conveyance.

A reminder: There has never been a nation of destitute people able to care for the environment. Remove the proprietary interest to property and you remove the citizenry’s ability to care for itself and habitat, or to govern themselves. My assumption of course….

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