Entrenching Property Rights for Alberta in the Constitution - Motion 501 Issue: Motion 501, if passed, would constitute Alberta’s request that the Constitution be amended so that Albertans would have their fundamental property rights protected. If the same motion passed both houses in Ottawa, property rights in Alberta would be enshrined in the Charter of Rights and Freedoms in our Canadian Constitution. Property rights are essential for any liberal democracy or market economy, and their protection has always correlated well with the quality of life in communities throughout history. This is an exciting opportunity to rectify this omission in the Charter of Rights in our Constitution. Jim Hillyer, MP for Lethbridge, has introduced the same motion to the House of Commons, and will bring it to floor for the necessary ratifying vote if it passes in our Legislature. MLAs will likely debate and vote on Motion 501 between 5 and 6pm on November 24. Persuading all MLAs to set politics aside and pass this historic motion will be important to its success. Motion 501 (Fox) reads as follows: Be it resolved that the Legislative Assembly authorize His Excellency the Governor General to issue a Proclamation under the Great Seal of Canada amending the Constitution of Canada in accordance with the Schedule set forth below. SCHEDULE AMENDMENT TO THE CONSTITUTION OF CANADA 1. The Constitution Act, 1982 is amended by adding the following after section 7: 7.1(1) Everyone has the right not to be deprived of the title, use or enjoyment of real property or any improvement made to such property, or any right connected with such property, except in accordance with the law and for full, just and timely financial compensation. (2) Subsection (1) applies only to the legislature and government of Alberta in respect of all matters within the authority of the legislature of Alberta. 2. This Amendment may be cited as the Constitution Amendment, [year of proclamation] (No Expropriation in Alberta without Compensation). [VERSION FRANÇAISE] follows. Q & A Backgrounder: (some content abridged from presentations given by Scott Reid, MP and Keith Wilson) Why do Property Rights need more protection in Alberta? Property Rights are a fundamental right that need to be protected by the law. There will often be a tension between the needs of the many and the rights of the few when it comes to shared goods like public infrastructure or land planning, and the only way to ensure people are always treated fairly is to give them the right to resort to the courts. Leading theorists and commentators have insisted for a millennium that for individuals to be free citizens under a limited government, their property must be constitutionally protected against government actions. This principle motivated the Magna Carta’s creation in 1215, was a foundational principle of the social contract for John Locke in the 17th century, and has been recognized as a basic right ever since. This is even true of Canadian common law and the Bill of Rights passed under Diefenbaker. While we should always expect that our laws will have adequate protections for all citizens, the purpose of the constitution is to ensure that fundamental rights are protected against government actions. However well-intentioned the leaders of the executive branch may be, there is a natural tendency for government to seek to reduce the obstacles to its actions. Property owners affected by large government undertakings will always be a group that needs ultimate recourse to an adjudicator outside the government to ensure fairness. Individuals should not be able to hold up necessary public works or plans, but they should also get their day in court if they are not being properly compensated or listened to. That is one reason why we have the judicial branch, which in its civil division decides matters when an individual has reached an impasse with the government. Many have criticized the 1982 Constitution for failing to enshrine property rights, because it has meant that people are not guaranteed that last resort in the courts unless the government grants it to them. While governments usually do, there are meaningful cases where it does not, and some of these are in Alberta. About 5 years ago, the government put through a series of Bills that were ostensibly about better planning for Alberta’s growth. While a laudable objective, Bills 50, 19, 36, 24, and then Bill 2 in 2012 proved to be misguided in varying degrees. One flaw they all shared was qualifying people’s property rights in certain circumstances for the sake of expedience. Why is the scope of this initiative narrowed to real property only? It protects real property as well as all rights connected to that property. Once the policy is expanded to forms unconnected to real property, two problems arise. First, it becomes apparent that some forms of property in Canada, such as patent or copyright property, are actually quite well protected and pushing this proposal farther than necessary will only raise unnecessary objections and decrease the likelihood of success. Second, real property is perceivably the most underprotected form of property in Canada. This is unacceptable considering that real estate and the businesses that operate on them are tied so closely with wealth and income for rural Canadians and industries that all Canadians depend on. Why is this resolution limiting the powers of the provincial government but not the federal government? First of all, the majority of real threats to property in Alberta stem from actions taken under provincial legislation. But secondly, nationwide change to the constitution is much more difficult because an amendment dealing with federal powers must be passed using the so-called “7-50” formula; seven provinces representing more than 50% of Canada’s population must concur in that change, and this would be difficult to obtain. Opening the Charter to the “7-50” provision also runs the risk that provincial premiers will bring forth resolutions of their own and the process will expand into a full constitutional review. Can you amend the Charter like this for just one province? Yes. Unlike the US, Canada does not generally have standalone provincial constitutions containing standalone bills of rights in each province. We do, however, have the ability to put into effect amendments to the Charter that affect one province only. This has been done multiple times in the past. Under the standing orders of the House of Commons, it is not out of order for a private member to initiate an amendment to the Constitution? No. There are specific grounds under the standing orders of the House for a private member’s bill to be excluded. 1. If the matter is already being addressed under different legislation 2. If the bill is outside of federal jurisdiction 3. If it violates the Charter of Rights and Freedoms Scott Reid proposed a similar amendment to the Constitution in the past, and although it was defeated by the opposition for partisan reasons, nobody claimed that it was out of order. Isn’t Section 43 the wrong formula to use in this case? No, this is a misinterpretation of the wording of section 43. Some believe that section 43 applies to language issues only. Examining Canada’s legislative history, this argument can be dispensed with on the basis that the section 43 formula has been applied in other areas. For example, in 1993 there was a constitutional amendment to allow a bridge to replace the ferry system in PEI, and in 1997 a constitutional amendment allowed Newfoundland to replace the church-based education system with a public school system. For more information on this important initiative: Scott Reid, MP, and Jim Hillyer, MP, speaking to this proposal: https://youtube/watch?v=LY17MFy9yJI&list=UUDPdtvn56dtnOr5jmYD-xsg Lorne Gunter speaking on property rights as the foundation of liberty: https://youtube/watch?v=I67rBaySBk8 Keith Wilson on Property rights in Alberta: https://youtube/watch?v=2wB1I5vfpLc&list=UUDPdtvn56dtnOr5jmYD-xsg realagriculture/2012/03/keith-wilson-full-steam-ahead-on-controversial-land-use-bill-36/ Further background on Property Rights in Alberta What are property rights? According to Alberta property rights advocate and lawyer Keith Wilson, there is a fair amount of certainty with regard to property rights in law. They are perceived as a bundle of rights with three key components: 1. Exclusive possession – this is one’s ability to say, “this is my land” 2. Exploitation – this is one’s ability to use or change the land, such as planting and harvesting crops, as well as modifying the land to make room for new crops 3. Alienation – this is one’s ability to sell, lease, sign away or gift their property Property rights apply to land, natural resources, leases, permits, licenses, intellectual property and much more. In our legal system, there is a fundamental relationship between property rights and the rule of law. Without the rule of law, property rights cannot exist; the rule of law is not optional, so it provides the system of enforcement needed to protect property rights. Under the rule of law, property owners have access to independent courts, impartial processes and checks and balances on power with limits on government, respect for freedoms and no arbitrary or unfair decisions. Property rights are essential to a market driven economy like ours because, in practice, respect for property rights by government adhering to the rule of law allows us to be free, to achieve our potential and to maximize wealth for our families and communities. Numerous early modern and contemporary economists, historians, and political theorists have noted the important connection between a guarantee of property rights and improved political freedom and economic success. Contemporary Scottish historian Niall Ferguson, for example, tried to identify the cause of notable divergences in wealth over time, citing that in the 1500s, the average Chinese individual was wealthier than the average American, but by the 1970s, this phenomenon had dramatically reversed. He determined that this was not due to geography, but rather was the result of respect for property rights and the rule of law, making the argument that property rights are complex in their effect on a society and have an impact on how people conduct their affairs and how governments operate. Isn’t it good to plan ahead as the government did with Bill 19? Bill 19: The Land Assembly Project Area Act allowed cabinet to freeze land indefinitely (for periods of over 30 years) while planners made decisions about where they wanted to build new infrastructure. Although Wildrose supports planning ahead and is not against expropriation powers, this policy denies landowners the opportunity to be compensated in a timely and efficient manner. Under Bill 19, a cabinet order would be placed on a piece of land restricting the municipality from approving any changes. This includes even the addition of a garage for example, not to mention more substantial improvements, and greatly affects the resale value and mortgage conditions with retail lending institutions. Premier Alison Redford amended the Act by including a mechanism whereby landowners have the right to declare expropriation for compensation when a land freeze is first put into place, but it may not be fair to the landowner or the taxpayer to force this one-time decision on full expropriation for land that may not even end up being used by the province down the road. Bill 24: Didn’t the government always own what is under your land? No, not until Bill 24 The Carbon Capture and Storage Act exempted pore space from property rights. Traditionally, landowners have held title over everything beneath the surface down to the centre of the earth, other than that which is exempt, like minerals, for example. However, when the government decided to embark on its multi-billion dollar effort to sequester CO2, it realized it needed access to the pore space under the earth. To preclude any trouble from landowners who might object to this unproven practice, they passed Bill 24 which granted them the right to pore space without compensation. In the past, some landowners have marketed their pore space for gas storage, but this right has been taken away under Bill 24. Although nothing has been done about this issue yet, Premier Jim Prentice has promised to address it. Didn’t the Government repeal Bill 50? Yes, but only after billions of dollars in power lines were pushed through. Bill 50: The Electric Statutes Amendment Act changed the process for the approval of new transmission lines. Before this policy was introduced, if a major transmission line was going to be built across private land, a public hearing would be held and the company would have to demonstrate that there was a public need for it. Under Bill 50, the government removed the requirement for a needs assessment and moved the decision process from a public hearing to cabinet. Although the Bill has been repealed, over $16 billion in new power lines were approved by cabinet under the new process and four major projects proceeded without public hearings or needs assessments where landowners affected could have a meaningful say. Didn’t the government fix the Land Stewardship Act in response to property rights concerns? Only partially, and only after a long grassroots and political campaign. Bill 36: The Alberta Land Stewardship Act gave cabinet the power to rescind water licenses, grazing leases, oil leases and many more rights without guarantees of compensation or the right to appeal compensation offered. The Bill stipulates that if a designated minister determines a particular action necessary, the bureaucracy must initiate a management response. This is referred to as a Henry the Eighth Clause, which effectively shifts the lawmaking power from the Assembly to the Cabinet. Some highlight of Bill 36 are as follows: • Section 11 outlines the right of cabinet to rescind rights • Section 19 restricts the right to compensation for landowners • Section 13 withholds a landowner’s right to the courts unless cabinet allows it • Section 15 (1) binds municipalities, regulators and all Albertans to the Bill • Section 15 (3) withholds a landowner’s right to make a claim against the government • Section 15 (4) limits the role of the courts • Section 17 (4) stipulates that the Bill trumps all other acts Mr. Wilson uses the example of a dairy farm owned by a family who holds the title to the land, a Confined Feeding Operation approval issued by the Natural Resources Conservation Board and a water license. Bill 36 calls the latter two rights “statutory consents”. It used to be the case that Confined Feeding Operation approvals could only be rescinded under certain circumstances, such as the surrender of the approval or the sale or abandonment of the land. While the government argues that by rescinding these statutory consents the family’s title to the land is not affected, it is obvious that the farming operation will no longer be able to continue without them, which violates the exploitation component of property rights. Without the protection of statutory consents, there cannot be a functional economy. According to Mr. Wilson, under the new land use framework the government can decide what Albertans can and cannot do on private land in a way that has never been seen before in Alberta, and possibly in a parliamentary democracy. It used to be that Albertans, like most people in free societies, were able to do whatever they wanted on their land as long as no activities were generally harmful. Now, Albertans may only conduct activities on their land that achieve specific outcomes determined by cabinet, and even if that overturns something the government had explicitly permitted – either yesterday or generations ago – you have no guarantees for compensation. What’s the problem with Bill 2 (Responsible Energy Development Act)? There are not adequate notification requirements before energy companies are allowed to assume landowners consent and proceed, and not adequate assurances that landowners can appeal decisions. Conclusion: These kinds of shortcomings in Bills passed by government could be challenged in court if property rights were enshrined and that mere threat would likely force Alberta’s government to ensure its past and future laws and actions respected property owners. All Albertans support economic activity and forward planning, but it is essential that the individual Albertans whose property is affected are respected and compensated adequately. Enshrining property rights in the Constitution would ensure that. Many influential commentators have lamented the fact that property rights were left out of the Canadian Constitution. This is an exciting and historic opportunity for Alberta to lead the way in correcting this oversight.
Posted on: Fri, 14 Nov 2014 06:59:40 +0000
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