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Property rights coming back to the forefront?

A flurry of activity on the property rights front may signal a real change in attitude and even legislation of the Alberta government. Or, it may be the politics we’ve come to see as usual, words and small actions with little real meaning, aimed at winning the power that comes from the trust of the majority of people who vote at the next general election.

While the Alberta Legislature was suspended this summer,

Lethbridge MP, Jim Hillyer presented a private member’s motion in the House of Commons to amend the Constitution of Canada to prevent the Government of Alberta from depriving any landowner of the use or enjoyment of their land without fair and timely compensation. The amendment would only be made at the request of the Alberta. It appears to give any landowner negatively affected by any provincial government action for any reason the right to compensation.

On November 13, just before the Legislature resumed sitting, Danielle Smith, flanked by Hillyer and Rod Fox, the MLA for Lacombe-Ponoka who had won the right to present a private member’s motion, announced an effort to revive the property rights issue that contributed to her party’s success in the last election.

A few days later, in the November 17 throne speech, Premier Prentice put respecting property rights, along with maximizing the value of our natural resources, as one of his government’s five guiding principles. He recognized private property rights as the foundation of a thriving market economy such as Alberta’s and as “a fundamental and essential principle of our democracy and our economy.” He also said that his government would “foster a culture of respect by acting on what landowners have told us” and was committed to rebuilding relationships with landowners.

Later that day, Prentice’s government introduced Bill 1, which repeals the Land Assembly Project Area Act, also known as Bill 19. This legislation allowed the government to take control of land the cabinet expected to would be needed for large projects in the future. Owners of affected land would have to obtain ministerial approval for any improvements or changes of any sort on the land, but would receive no compensation until the future project was implemented. Although the bill was passed in 2009 and amended in 2011 it was never proclaimed as law.

The Wildrose Party considered the repeal of this single piece of legislation inadequate.

The following week Fox introduced his motion to add a clause to Canada’s Charter of Rights and Freedoms, which was defeated 40 votes to 9. He expressed his disappointment in a media release, saying “property rights are a right that needs to be entrenched in law to protect against poorly written laws passed by any previous, current, or future government.” 

Media attention that might have attracted the Edmonton-Ottawa alliance proposal was diverted to the defection of two MLAs to the PC party that day.

Prentice has a different view. “We have heard from Albertans, loud and clear. Through Bill 1, repealing the Land Assembly Act, we’ve taken the first step to hit the reset button on property issues,” said a spokesperson for the premier, Jessica Jacobs-Mino.

“Now, we want to move forward in a spirit of trust and respect to open lines of collaboration. We look forward to ongoing conversations with Albertans on these issues. This is the beginning of a new culture on property rights.”

Jacobs-Mino could not speak to the next steps in the ongoing land use issues, but she assured Alberta Beef that the premier takes the issue of property rights very seriously and that he has made it a priority to ensure that property rights are restored.

Keith Wilson, described by one political pundit as a rural rabble-rouser, is a lawyer well-respected in legal circles as a specialist in the law relating to land disputes. He was so incensed by the land use laws proposed and enacted by the Stelmach government that he campaigned across the province speaking to packed halls of farmers, lawyers and others explaining points of law and what powers the government was claiming for itself. Worse yet, it was taking the execution of these laws behind the closed doors of the cabinet room, where any favoritism or other unfair action can be taken in secrecy, without explanation to citizens.

Wilson sees the repeal of the Land Assembly Act as a first step, but a very small one, taking only the low-hanging fruit among the land bills he fought. He’s more concerned about the remaining “land bills” – 24, 50 and 36, officially the Carbon Capture and Storage Act, which expropriated underground pore spaces (actually underground caverns that can be used to store gases), the Electric Statutes Amendment Act, which allows taking private land without showing a public need for transmission lines, and the Alberta Land Stewardship Act, which Wilson calls the worst of the bunch.

“So much more needs to be done. Going forward, we need to repeal parts of ALSA (Bill 36) to restore respect for property rights and the rule of law,” he says. “It’s the worst of the new land laws. I don’t know whether Mr Prentice really intends to change things. There’s some symbolism in his actions and his statement on it makes me very optimistic. I hope the repeal of Bill 19 is part of a deliberate strategy and he’ll deal with the lion (ALSA) later.

“At the same time I’m nervous that this could be another effort to catch us all off-guard. I hope we’ll see real change, there’s still time for that, but there’s still significant uncertainty, so my hope is tempered with caution. It remains to be seen whether Mr Prentice honors his commitment.”

Grassroots Alberta was disappointed in the new premier’s performance.

“We’re disappointed,” says Kevin Avram, a director of the group. “The premier clearly indicated something significant was coming and he didn’t deliver. There was real clarity in his promises. It’s unfortunate, but we have unmet expectations.”

The Alberta Land Institute works with experts from a wide range of fields to resolve issues and policy options. Their projects cover property rights, threats and opportunities for irrigation and the functioning of wetlands.

Their recent work includes research from eminent legal scholars on the land use laws. Their opinions are surprising.

“The recent changes in land use law in Alberta were not as radical as some people thought,” says Brian Manning, director of the Institute. “Planning has become more important as increasing population, greater resource extraction, more highways compete with landowners for diminishing water and land access.”

The municipality’s right to plan land use has been supported by the Supreme Court in the case of CP Rail against the City of Vancouver, which went against the landowner. But the legal researchers note that many countries consider the powers taken by the Alberta government go too far. As one lawyer told Alberta Beef: The Alberta legislation contains very little accountability and has extremely broad discretion with very few principles to uphold. The law should not be arbitrary.

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