Property Report Should Generate Wider Property Debate: Grounds for expropriation should not be off table

Commentary, Housing Affordability, Joseph Quesnel

The Alberta Government completed its landmark property rights consultation with Albertans.

The Property Rights Task Force heard from 1,400 Albertans and the province wasted little time in responding to the Task Force’s recommendations.

The Task Force Chair and  Minister of Alberta Environment and Water, Diana McQueen, said, “Albertans want a more vigorous consultation process, they want compensation that reflects current values and impacts, and they want more resources available to them when faced with negotiating over land or property encroachments – including access to the courts.” Consultation, compensation and courts.

The Task Force proposed to create a property rights advocate to find appropriate solutions to property rights concerns.

First, some political analysis. For those unfamiliar with recent Alberta politics, the Task Force was part of government’s response to increasing and mainly rural concernsabout the Alberta “land bills”– Bills 19, 24, 36, and 50.

Without getting technical or taking sides, many said the bills affected rights to compensation, access to the courts, or centralized land use planning in Edmonton.

Credible legal authorities who care about property rights argue these concerns are “overblown.” But, whoever is right, it is heartening to hear Albertans debate property rights.

When the Task Force visited Lethbridge, it was good to hear Albertans question why the provincial government should now own the pore spaces on their property. Pore spaces are the places below the surface of all land where the government has plans to inject carbon dioxide to deal with its greenhouse gas reduction targets. In Bill 24, the Carbon Capture and Storage Statutes Amendment Act, it was declared that “pore space below the surface of all land in Alberta is vested in and is the property of the Crown in right of Alberta.”

In common law individuals own all the land from the surface to the centre of the earth, except for mineral and water rights.

But, laws passed by provincial legislatures can change rights we might not even know we had.

More public consultation, clear compensation, and access to dispute resolution mechanisms, including courts, are all important, so on the surface there’s nothing wrong with the province’s stated intentions. Once we figure out exactly how a real-life property rights advocate works that could be positive.

Politics aside, the provincial government should not feel it can now shut down the debate. The government said they will review the Expropriation Act and Surface Rights Act. This should extend to the grounds by which governments may expropriate at all. Neither provincial governments nor municipalities should be in the business of expropriating for vaguely-defined purposes, including nebulous economic development. The vague process is frequently abused given that governments define this category.  

The power of government to expropriate at any level may be a scary exercise of power over individuals. The Crown is the theoretical holder of all underlying title to land in this country.  Our common law evolved to restrain this power because an interpretive presumption exists that legislatures intend expropriation to include compensation rights, but this right can be changed by legislatures.

In 1973, the Institute of Law Research and Reform at the University of Alberta wrote, “It cannot be too strongly emphasized that the Legislature should not confer the power of expropriation on anybody or person unless it is clear that the power is inescapably necessary in the interests of government and that adequate controls over its exercise are provided.”

Governments have not always heeded this advice.

The report says that even the United States, where property rights are expressed in the Constitution and government is empowered to confiscate private property for “public use” purposes if it is compensated, the definition of “public use” has been expanded well beyond its original purpose.

The Alberta government discovered ordinary people care whether their democratically-elected legislature protects property rights. They want governments to make it harder, not easier, to seize their property.  One major way to force governments, at least in theory, to think twice about property seizure is the reality they will have to compensate private citizens.
But, any government wants to limit pay out to citizens if it can get away with it.

One answer is to take the temptation not to pay out of the hands of any Alberta government by amending the Charter of Rights to include rights of compensation in such a way to affect only Alberta.  One Ontario Member of Provincial Parliament and a federal MP tried that route by introducing a joint resolution in their respective legislatures to guarantee, “full, just and timely financial compensation.”

At the same time they could clearly define “public use” to avoid the problems U.S. landowners discovered.