An expropriation case in Manitoba has sparked concerns over the sanctity of land ownership.
In a recent ruling, the provincial appeals court allowed the Rural Municipality of Ellice to expropriate 288 acres of pasture from a St. Lazare, Man., farmer to create a tourist attraction on the site of Fort Ellice, a 19th century fur trading post.
Antoine Hacault, who represented landowner Arthur Fouillard in the case, argued that the sweeping new powers under the 1997 update to the Municipal Act did not allow local governments to expropriate land solely to generate spin-off economic development benefits.
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The legislation states that a council may encourage economic development in any manner it considers appropriate, he said.
Hacault’s position was based on the definition of the term “encourage,” which he compared to a marathon runner and people cheering from the sidelines.
“If I’m going to encourage that person, I would stand by the sidelines and say when he is discouraged, ‘keep on going,’ or ‘here’s some water. What do you need as far as help?’ ” he said.
“I don’t pull him out of the race and run it myself.”
Hacault said municipalities have traditionally been responsible for roads, drainage ditches, water treatment, sewers and parks.
“They’ve given a very generous interpretation to the word ‘encourage.’ That’s what’s new, different and disturbing,” he said.
“That’s never been done in Manitoba to my knowledge by rural municipalities.”
In the Oct. 1 decision handed down by the Manitoba Court of Appeal, chief justice Richard Scott wrote that the RM’s land expropriation was done for a valid municipal purpose.
“A municipality has the authority to engage in a business-related undertaking, such as tourism, if the council considers it, in good faith, to be in the best interests of the municipality as a whole,” Scott wrote.
Ellice reeve Guy Huberdeau said that the RM and the town of St. Lazare have been attempting to buy the land since 2001, when a consulting firm recommended developing it as a way to boost tourism.
“We approached the family quite a few times, and sent a few proposals, basically with no response,” he said.
“So, we said, ‘enough of this,’ and we went the expropriation route.”
Huberdeau said the RM would have preferred to buy more land than the 288 acres it expropriated because there are two other historically important forts near the Fort Ellice site.
He added that the provincial government has tried five times to buy the land since 1972.
“The smallest parcel they tried to acquire was double the size of the one we have,” he said.
The largest one was 3,300 acres.
Huberdeau said landowners shouldn’t worry about the legal precedent because the legislation offers limited expropriation powers to municipalities.
Final negotiations over compensation will go before the Land Value Appraisal Commission. Huberdeau said the RM would be obligated to pay only fair market value of the land, which he described as stony and sandy with heavy bush and steep hills.
Plans for developing the site will be finalized this winter, he added. Depending on the level of funding available, it could include walking trails and an interpretive centre in St. Lazare, which is already two-thirds completed.
Only a cairn marks the site, which from a hilltop affords a view of three watersheds: the Qu’Appelle, Assiniboine and Beaver Creek.
Marcel Fouillard, who speaks for his 86-year-old father, said the RM’s first buyout offer in 2003 at $56,000 wasn’t even close to what the land was worth, considering the loss of privacy, increased tourist traffic and the fact the land included 11/2 kilometres of private road and power line access.
The family offered 90 acres that included the historical site, he said, but the RM turned it down, instead pursuing a larger parcel in the centre of his father’s 3,300 acre farm. The highest offer so far was $72,000, he said.
“We didn’t even have time to consider the offer. The offer (in 2005) was in the same envelope as the expropriation notice.”
For 40 years the Fouillards allowed the community to use the land for baseball games and picnics without seeking compensation. However, it stopped allowing free access after the traffic of treasure hunters, partiers, all-terrain vehicle enthusiasts and vandals became too heavy.
“There’s some very dangerous legal precedents that have been set with this,” he said, adding he has received calls from other landowners who are worried about the future implications of the court decision.
“This is where it gets really scary. They ruled that the municipality can take over any land or any business just based on the speculation that they can do a better job than you can,” he said. “I thought as landowners we had more rights when it comes to expropriation.”
Fouillard, who estimated the family has spent more than $40,000 on the legal fight, said it was unlikely to gamble on a second appeal to a higher court.
David Rolfe, president of Keystone Agricultural Producers, said farmers may have good reason to worry that the court’s decision sets a legal precedent. He hoped it would be only an isolated example based on the land’s unique, historical value.
“It does set a precedent, but I’m not sure how often the precedent would be used,” he said.
“It may cause problems down the road if a similar situation arises.”
