Property rights amendments prevent governments from seizing land or restricting its use without compensation
Alberta is one of the few Canadian jurisdictions with a citizen’s bill of rights outlining fundamental freedoms. In 1972, the Lougheed government introduced the Alberta Bill of Rights, which supersedes other laws and requires provincial legislation to be consistent with it.
Premier Danielle Smith faced controversy last year for amending Alberta’s Bill of Rights. While most commentators focused on the amendments protecting the right to refuse vaccinations, they overlooked the significance of changes that strengthen property rights.
Section 1 now states: “The right to the enjoyment of property and the right not to be deprived thereof to the extent authorized by law and except by due process of law.”
Another new clause reads: “The right not to be subject to a taking of property except to the extent authorized by law and where just compensation is provided.”
The law defines a “taking” in two ways: as “a transfer of property ownership without the consent of the owner (expropriation)” and as a situation where “an owner of property [is] being deprived of all reasonable uses of that property.”
Unlike the United States, Canada lacks constitutional protections for property rights. While Canadians have some legal safeguards, they are not as extensive as those in the U.S. In the British common law tradition, there is a presumption that if the government takes a citizen’s property, it must follow legal procedures and provide compensation.
This principle dates back to the Magna Carta of 1215, which opposed arbitrary seizure, and extends to the 1920 British case Attorney General v. De Keyser’s Royal Hotel, which ruled: “Unless the words of the statute clearly so demand, a statute is not to be construed to take away the property of a subject without compensation.”
Following this precedent, federal, provincial and territorial governments in Canada must provide fair compensation when expropriating property. While provinces and territories have different expropriation laws, they all require due process.
However, a legal loophole allows governments to deprive citizens of their property without compensation. Courts refer to this as a “regulatory taking” when government regulations restrict land use to the point that it is effectively expropriated.
The Supreme Court of Canada ruled on regulatory takings in two cases: Canadian Pacific Railway Co. v. Vancouver (2006) and Annapolis Group Inc. v. Halifax Regional Municipality (2022). The court determined that compensation for regulatory takings requires two conditions: the government must acquire a beneficial interest in the property, and the regulation must remove all reasonable uses of the land. A beneficial interest means the government gains a financial share or the right to occupy a property without legally owning it.
Peter Russell, one of Canada’s top constitutional law scholars, argued that the requirements established in the CPR case are nearly impossible to meet. Proving the removal of “all” reasonable uses sets a high bar, granting governments broad discretion to restrict land use without compensation.
The Annapolis ruling clarified this issue. The Supreme Court determined that municipalities do not need to gain a proprietary interest in a property to constitute a regulatory taking. Instead, a claimant only needs to prove the government received “a benefit or advantage accruing to the state” due to regulatory activity. This means the government can deprive a titleholder of potential economic use without taking legal ownership.
The Annapolis decision also established that courts must consider future-oriented land uses when determining whether a regulatory taking has occurred. The amended Alberta Bill of Rights now explicitly includes both expropriations and regulatory takings, strengthening property rights protections.
This amendment is significant because it expands safeguards for Albertans by applying not only to provincial laws but also to municipal bylaws. While Alberta cannot enforce laws that conflict with the amended Bill of Rights, the revisions give courts more authority to ensure governments treat citizens fairly.
The updated Bill of Rights is now law in Alberta. Other provinces and territories should follow its lead and strengthen protections for their citizens.
Joseph Quesnel is a senior research fellow with the Frontier Centre for Public Policy.
