For more detail, please see below.
1) Pass an Alberta Property Rights Protection Act that will further entrench the right to own and enjoy property, and the right not to be deprived thereof without due process of law.
Existing legislation provides for compensation only when title is formally taken by expropriation, but not for property partially taken or devalued through government regulation. This Act will address this omission and ensure that all landowners have recourse to the courts to protect their rights.
The Alberta Property Rights Protection Act will:
Propose an amendment to the Canadian Constitution to enshrine property rights. Passage of a constitutional amendment to protect property is possible if the federal Parliament and the Alberta Legislature pass a motion1 in favour of property rights that applies to that willing province, in this case Alberta. Constitutionally, this is possible through the use of Section 43 of the Constitution.2 This proposed constitutional amendment would first be submitted to Alberta voters in a referendum held concurrent with the 2021 Municipal Election in order to comply with the Alberta Constitutional Referendum Act, which requires “the holding of a referendum before a resolution authorizing an amendment to the Constitution of Canada is voted on by the Legislative Assembly.”
Amend the Land Titles Act to bar adverse possession claims. Alberta is the only province3 in Canada that allows adverse possession claims to be made, i.e. to allow a squatter to claim land that does not belong to them if the owner of the land has not sought to recover the land for ten years.
Treat government regulation in the same way as government expropriation for the purposes of compensation. This would be based on practices in Europe, Australia, the United Kingdom and Israel. The principle here is that a government-decreed loss- warrants compensation.
Countries that take this approach include Australia, Austria, Finland, France, Germany, Greece, Israel, the Netherlands, Poland, Sweden, the United Kingdom and the United States.
This would apply to direct actions in and against a specific piece of private property. It would not be about compensating a property owner for changes made nearby, i.e., a city expands a freeway and higher noise results for an entire neighbourhood and potentially affects property values.
Allow private property owners to convert government attempts to regulate property into an expropriation action. This change would “start the clock” on the compensation process when, for example, government regulation and delays “freeze” all or part of someone’s private property and by doing so, causes a loss of value or income.
This is based on the German and Swedish model for substantial costs or losses imposed on private property through regulation and where governments do not quickly compensate for such regulation. In Germany and Sweden, property owners can initiate a ‘transfer-of-title” claim if regulatory actions are delayed. In Germany, a distinction is made between land designated for private or public use. Where the land is designated for public use, and a government does not act quickly to acquire the land, a landowner may demand that the land be acquired (expropriated) with appropriate compensation.
This would prevent decades-long delays by governments to stall on fair compensation.
For example, this happened to farmer Bill Nilsson in 1974 when he wanted to build a mobile home park on part of his property but the Government of Alberta refused permission and designated part of Nilsson’s land as a Restricted Development Area (RDA) for the (ostensible) use as a greenbelt or parkland. Nilsson fought the province for 29 years, all the way to the Supreme Court of Canada in 2003, where the Court endorsed lower court rulings that Nilsson had been offered too-low compensation and on false pretenses. (The government actually wanted the land for a highway, not a greenbelt, which would have triggered higher compensation.)
Preserve the right of governments to expropriate and regulate for the public good, but ensure government regulation is treated similar to government expropriation when it comes to compensation for private property owners. Governments do need to have the right to expropriate. A UCP government will recognize this right in conjunction with buttressing real property rights through treating what’s known as “major takings” and “direct partial takings” as akin to expropriation. Task a Committee of the Legislature with reviewing relevant legislation and government policies to determine whether changes are needed to ensure compliance with property rights.
2) Task a Committee of the Legislature with reviewing relevant legislation and government policies to determine whether changes are needed to ensure compliance with property rights.
3) Ensure government departments and agencies, boards and commissions account for any potential costs and/or loss of value to private property in new regulatory proposals
4) Create a Property and Farmer’s Rights Advocate Office out of the existing two offices to reduce duplication of roles and operations, and to provide more focused support for Albertans, particularly in rural areas.
There are no incremental costs associated with these proposals. A referendum on the proposed constitutional amendment would be held concurrent with the 2021 Municipal Elections, together with elections for Alberta Senate nominees which the UCP is committed to holding, so the costs of administering a concurrent referendum would be marginal.
- Albertans should not be forced to fight their own elected governments to be awarded just compensation for government-imposed costs on their private property, be it a regulatory cost or a loss in value that results from a government action.
- Expropriation is a legitimate tool in the public interest but real property rights must be strengthened, including and especially for “indirect expropriation” through regulation.
- The province of Alberta already has property rights legislation (the Alberta Personal Property Bill of Rights, passed in 2000), but it does not include land or address compensation for regulatory takings.4
- A UCP government will follow the example of many European countries and Israel where property owners are treated fairly—where government-imposed regulatory losses are treated as akin to expropriation.
- In 1974, Bill Nilsson, a farmer near Edmonton who had purchased his land back in the 1950s, wanted to build a mobile home park on part of his property but the Government of Alberta refused permission. It instead designated part of Nilsson’s land as a Restricted Development Area (RDA) for use as a greenbelt or parkland at some future date.
Nilsson considered selling part of the land to the province. However, the province’s tender was for only $2,500 an acre, compared to a government purchase price of $10,000 per acre for land on either side of his property and Nilsson refused.
Nilsson later found out that the original justification for denying the trailer park development – a greenbelt designation– was never true, but that was hidden from him by provincial civil servants. In reality, the provincial government wanted the land for an eventual ring road and utility corridor and would have been statutorily required to pay much higher compensation costs. A designation of green space or parkland – a regulatory taking – required no compensation though the government could and did offer a meager amount per acre.
It took Bill Nilsson over two decades of regulatory and court battles to win a judgment in his favour at the Court of Queen’s Bench in 1999, where he was awarded $9.1 million in principal and compound interest, as well as costs. However, the government continued to fight until 2003 when the Supreme Court of Canada refused to hear the province’s appeal.5
Justice for Bill Nilsson took 29 years.
- In 1980, David and Linda Hansen purchased a ranch in southeast Alberta with a small dam built in the 1940s by the federal government. One year later, the Alberta government wanted the Hansen dam and other lands as part of a regional irrigation project. In 2010, University of Calgary law professor Peter Bowal described how events unfolded:
“In 1984, the government made its move. It muscled in and wrested control and operation of the Hansen dam and land. An expropriation hearing ended in an agreement that the Hansens owned the dam and land, the value of which would be determined later. In good faith, the Hansens signed the agreement and sent it in.”
That turned out to be a mistake. After the province later took the position that the dam (owned by the Hansens) had no value, and the Hansens refused access, they were then subject to lawsuits for 25 years that as Bowal describes, the Hansens “were compelled to defend serial civil proceedings against them that in any other context would have been viewed as abusive and vexatious.”
The ensuing battles took their toll on the Hansens’ health and finances. The Hansens spent $100,000 on legal fees while the province spent $1 million dollars; at one point, David Hansen could not sleep for months, and while trying, died at age 62.
His widow, Linda Hansen, was subject to another court action in 2010: “Today, the government will be in court again seeking to discard her claim to fair compensation,” wrote Peter Bowall in 2010—35 years after the problem of injured property right began.6
The Hansens’ experience is an example of arguably unfair and unjust expropriation. The Nilsson story is in part an example of partial direct takings: Part of Nilsson’s land was initially “frozen” by regulation (ostensibly for a park). While negotiations and court cases proceeded and he lost the potential (higher) income from a trailer park, and of course, he could not sell or develop the land.
The Hansens had no constitutional right to private property when facing unfair expropriation efforts. The Nilsson example shows how initial regulation actions can lead to a whole or partial loss of use of property (and a concurrent loss of value) that rarely results in compensation for such regulations.7 In some cases, that is why governments use regulation: it allows them to avoid paying compensation that would otherwise be due if expropriation statutes were in play.8
- Alberta’s Constitutional Referendum Act requires that a referendum, take place before the Legislature can pass a resolution authorizing an amendment to the Constitution of Canada
- Mark Milke, Stealth Confiscation, 2012, Fraser Institute, http://bit.ly/2vN5UeU, 66-72
- Eran Kaplinsky and Davdi Percy. A Guide to Property Rights in Alberta, 6. Alberta Land Institute, University of Alberta. http://bit.ly/2U4GSRK
- Alberta Minister of Infrastructure v. Nilsson, 2002.
- Peter Bowal, “Province grinds down honest family,” Calgary Herald, March 24, 2000, A13. http://bit.ly/2FItgbJ
- See discussions about such possibilities in Mark Milke, 2012, Stealth Confiscation, Fraser Institute.
- The infringement of private property by Canadian governments is regrettably not new and the problem as per above includes past Alberta governments. As Israeli professor and property rights expert Rachele Alterman noted, ““Among the 13 countries, Canada ranks as offering the lowest degree of compensation rights.” Rachelle Alterman, Takings International: A Comparative Perspective on Land Use Regulations and Compensations Right, American Bar Association, 2010, 3.