Alta. needs to fully debate property rights

The Alberta government has 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 its recommendations.

Provincial environment minister Diana McQueen, who chaired the task force, said Albertans want more vigorous consultation, compensation that reflects current values and “more resources available to them when faced with negotiating over land or property encroachments, including access to the courts.”

The task force proposed to create a property rights advocate to find appropriate solutions to concerns.

For those unfamiliar with recent Alberta politics, the task force was part of the government’s response to increasing and mainly rural concerns about Alberta land legislation: 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. Credible legal authorities who care about property rights argue these concerns are overblown.

Whoever is right, it is heartening to hear Albertans debate property rights.

In common law, individuals own all the land from the surface to the centre of the Earth, except for mineral and water rights. However, laws passed by provincial legislatures can change rights that we might not even know we had.

More public consultation, clear compensation and access to dispute resolution mechanisms 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.

The provincial government should not feel it can now shut down the debate.

The government has said it will review the Expropriation Act and Surface Rights Act, which should extend to the grounds under which governments may expropriate at all. Neither provincial governments nor municipalities should expropriate for vaguely defined purposes, including nebulous economic development.

This vague process is frequently abused, given that governments define the category.

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.

However, legislatures can change this right.

“It cannot be too strongly emphasized that the legislature should not confer the power of expropriation … unless it is clear that the power is inescapably necessary in the interests of government and that adequate controls over its exercise are provided,” the University of Alberta’s Institute of Law Research and Reform wrote in 1973.

Governments have not always heeded this advice.

The report says that even in the United States, where property rights are expressed in the constitution and government is empowered to confiscate private property for public use 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.

One answer is to remove the temptation to not pay by amending the Charter of Rights to include rights of compensation in such a way that it affects only Alberta.

At the same time, public use could be clearly defined to avoid the problems that U.S. landowners have discovered.

Quesnel is a policy analyst with the Frontier Centre for Public Policy, where he writes on aboriginal and property rights at www.fcpp.org. This article has been edited for length.