The Public Has To Uphold Property Rights. Nobody Else Will

Rights that are subject to a politician’s whims might as well not be rights at all
Published on July 28, 2023

Homes in Delta, B.C. Photo by Darryl Dyck/The Canadian Press files

 

When it comes to safeguarding our property rights, we shouldn’t leave it to the whims of politicians and policymakers. Rights that are subject to a politician’s whims might as well not be rights at all.

The solution is a vigilant public that insists government address areas of weakness. To my mind, that is one of the central takeaways from the Canadian Property Rights Index, which I oversee for the Frontier Centre for Public Policy. First launched in 2013, the index provides disturbing evidence of the precariousness of our property rights, thanks to ongoing legislative efforts to diminish them. In our latest ranking, for 2023, the best mark any jurisdiction received was a B+, which went to British Columbia. Prince Edward Island ranked lowest with an F. That no jurisdiction scored higher than a B+ is a serious concern. It suggests that all provinces and territories must work harder to create stronger procedural safeguards for property owners.

Property rights

The index examines seven specific indicators: land title, expropriation, regulatory takings, civil forfeiture, protection for property rights when enforcing either heritage or endangered species legislation, and municipal power of entry, which refers to the power of municipal officials to enter onto private land in executing bylaw enforcement.

All 10 provinces and three territories are assessed on each of these indicators. The higher a jurisdiction’s score on an indicator, the more it safeguards property rights. All seven indicators get the same weight.

A key insight from the index is the uneven enforcement of property rights both across the country but even within a province. For example, despite ranking highest overall, British Columbia only scores 67 per cent in regulatory takings — which occur when regulations enacted by the government prevent a property owner from making any beneficial use of their property. B.C.’s Agricultural Land Reserve, which restricts land rights and removes potentially valuable housing land from development, is also a blemish on the province’s record. On the other hand, B.C. has good procedural safeguards protecting property rights in other areas, such as expropriation or enforcement of endangered species legislation.

Some Atlantic provinces have lower scores partly because they have an older title registration system that is less reliable than the newer Torrens systems, which maintain a central registry of lands that is more accurate, less costly and is insured against errors. PEI’s lack of a Torrens-style land title system and its weak protections in areas like expropriation, regulatory takings, endangered species legislation and heritage properties contribute to its low ranking. However, a plus for PEI is that it lacks civil forfeiture laws.

Although Quebec’s civil law system provides some relief from regulatory takings, the province performed poorly overall (with a mark of 50 per cent) because of lower scores in areas like land title, expropriation, endangered species legislation and municipal power of entry.

Even Alberta, which has a reputation for being a pro-market province, has room for improvement in areas like regulatory takings, civil forfeiture, endangered species legislation, and municipal power of entry. Its overall score was 70 per cent, which placed it 4th among the 13 jurisdictions.Because politicians and policymakers often treat the seven areas covered by the index as separate  this uneven performance across jurisdictions is not a total surprise. The link between civil forfeiture, for example, which deals with crime control, and heritage designation, which is about preserving historical buildings for future generations, may not be obvious at first. But both areas, and the other five as well, involve government decisions that can potentially limit property ownership and use.It is relatively easy for governments to introduce procedural measures to safeguard individual property rights. Without constitutional safeguards, however, politicians are unlikely to limit their powers willingly. Most governments would prefer to minimize their responsibilities towards people whose property rights they violate, especially if a financial cost may be involved. Government’s interest is usually to make expropriations easier and cheaper. As for civil forfeiture, governments usually want to make it easier to gain title by reducing the burden of proof on politicians and bureaucrats.Disregard for property rights is a problem with governments of all political stripes. Few governments or political parties seem to truly grasp the importance of self-restraint regarding these rights, especially if it reduces their control and increases their costs.Responsibility therefore falls on us, the public, to act as watchdog. We must scrutinize government policies and voice our concern — loudly and insistently — when our property rights are violated. Pro-market think-tanks and scholars also need to contribute. The strict protection of property rights across all jurisdictions is in everyone’s best interest.

 

 

Joseph Quesnel is a senior research associate with the Frontier Centre for Public Policy. He is the author of the newly revised Canadian Property Rights Index 2023.

Related Items:

Read commentary by Joseph Quesnel; To Finally Kill Colonialism, Give Property Rights to First Nations Individuals,

Read Supreme Court’s Annapolis Ruling A Win For Property Owners by Joseph Quesnel.

 

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