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Property Rights: Where did they go? Impacts of New Alberta Legislation on Landowner Rights

Property Rights: Where did they go? Impacts of New Alberta Legislation on Landowner Rights . Keith Wilson , B.A., LL.B . Wilson Law Office November 25, 2010 . New Legislation Impacting Landowner, Lease, and Water Rights . Bill 36 – Alberta Land Stewardship Act

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Property Rights: Where did they go? Impacts of New Alberta Legislation on Landowner Rights

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  1. Property Rights: Where did they go?Impacts of New Alberta Legislation on Landowner Rights Keith Wilson, B.A., LL.B. Wilson Law Office November 25, 2010

  2. New Legislation Impacting Landowner, Lease, and Water Rights • Bill 36 – Alberta Land Stewardship Act • new powers for Provincial Cabinet to extinguish existing rights (water rights, land titles, grazing dispositions) • new central-planning by Cabinet that trumps local municipalities and other agencies • Bill 19 – Land Assembly Project Area Act • authorizes the Provincial Cabinet to freeze land for extended periods of time – restricts compensation • Bill 24 – Carbon Capture and Sequestration Act • government expropriates an element of land rights

  3. Land Use Planning Before Bill 36 • locally elected municipal councils make decisions on land use planning • based on the idea that: • people most affected will make better decisions using local knowledge • better access to decision makers – greater accountability • Municipal Government Act – mandatory public notice & public involvement in municipal development plans & land use bylaws

  4. Bill 36 – Minister Morton New Alberta Land Stewardship Act • new centralized model for land use, economic, environmental, and social decision-making developed by Minister Ted Morton • Cabinet will approve regional plans that establish: • the Cabinet’s “economic, environmental and social objectives” • the Cabinet’s plan for activities on all private and public land for the next 5 years – 5 year plans • the Cabinet’s policies for sustainable development “by taking account of and responding to the cumulative effect of human endeavour and other events”

  5. Bill 36 – Minister Morton New Alberta Land Stewardship Act – New Powers Sec. 11- Cabinet’s regional plans can amend or “extinguish” existing rights, licenses, dispositions, leases, approvals, permits, and land titles Sec. 19 - no right to compensation if water licenses, NRCB approvals, land titles, development permits, grazing dispositions, subdivision approvals, etc are amended or extinguished Sec. 13 - no right to appeal Sec. 15(1) - binding on municipalities and all Albertans Sec. 15(3) - no right to make claim against government Sec. 15(4) - role and authority of Courts removed by the Act

  6. New Alberta Land Stewardship Act – Extinguish Rights? 11(1)  For the purpose of achieving or maintaining an objective or a policy of a regional plan, a regional plan may, by express reference to a statutory consent or type or class of statutory consent, affect, amend or extinguish the statutory consent or the terms or conditions of the statutory consent. 1(aa) “statutory consent” means a permit, licence, registration, approval, authorization, disposition, certificate, allocation, agreement or instrumentissued under or authorized by an enactment or regulatory instrument;

  7. New Alberta Land Stewardship Act – What Types of Statutory Consents can be Extinguished? 1(aa) “statutory consent” means a permit, licence, registration, approval, authorization, disposition, certificate, allocation, agreement or instrumentissued under or authorized by an enactment or regulatory instrument; Water Act 1(dd) “licence” means a licence issued under this Act and includes a renewed licence and a deemed licence under this Act; Cabinet’s regional plans can extinguish water licences

  8. New Alberta Land Stewardship Act – What Types of Statutory Consents can be Extinguished? Public Lands Act 1(e) “disposition” means any instrument executed pursuant to this Act, the former Act, The Provincial Lands Act, RSA 1942 c62, or the Dominion Lands Act (Canada), RSC 1927 c113, whereby (i) any estate or interest in land of the Crown, or (ii) any other right or privilege in respect of land of the Crown that is not an estate or interest in land, is or has been granted or conveyed by the Crown to any person, but does not include a grant; 1(aa) “statutory consent” means a permit, licence, registration, approval, authorization, disposition, certificate, allocation, agreement or instrumentissued under or authorized by an enactment or regulatory instrument; Cabinet’s regional plans can extinguish grazing leases

  9. New Alberta Land Stewardship Act – What Types of Statutory Consents can be Extinguished? 1(aa) “statutory consent” means a permit, licence, registration, approval, authorization, disposition, certificate, allocation, agreement or instrumentissued under or authorized by an enactment or regulatory instrument; Land Titles Act 1(k) “instrument” means (i) a grant, certificate of title, conveyance, assurance, deed, map, plan, will, probate or exemplification of will, letters of administration, or an exemplification of letters of administration, mortgage or encumbrance, (ii) a judgment or order of a court, (iv) any other document in writing relating to or affecting the transfer of or dealing with land or evidencing title to land; Cabinet’s regional plans can extinguish land titles & freehold mineral titles

  10. New Alberta Land Stewardship Act – Extinguish Rights? 11(1)  For the purpose of achieving or maintaining an objective or a policy of a regional plan, a regional plan may, by express reference to a statutory consent or type or class of statutory consent, affect, amend or extinguish the statutory consent or the terms or conditions of the statutory consent. 1(aa) “statutory consent” means a permit, licence, registration, approval, authorization, disposition, certificate, allocation, agreement or instrumentissued under or authorized by an enactment or regulatory instrument;

  11. New Alberta Land Stewardship Act – What Lawyers and Others are saying . . . .

  12. New Alberta Land Stewardship Act – What Lawyers and Others are saying . . . .

  13. New Alberta Land Stewardship Act – What Lawyers and Others are saying . . . .

  14. New Alberta Land Stewardship Act – What Lawyers and Others are saying . . . .

  15. New Alberta Land Stewardship Act – Binding on Everyone Binding nature of regional plans 15(1)  Except to the extent that a regional plan provides otherwise, a regional plan binds (a) the Crown, (b) local government bodies, (c) decision‑makers, and (d) all other persons.

  16. New Alberta Land Stewardship Act – Binding on Everyone Application of law under a regional plan 12(1)A regional plan (b) may manage an activity, effect, cause of an effect or person outside a planning region until a regional plan comes into force with respect to the matter or person;

  17. New Alberta Land Stewardship Act – No Compensation if Rights Extinguished Compensation limited 19No person has a right to compensation by reason of this Act, a regulation under this Act, a regional plan or anything done in or under a regional plan . . .

  18. New Alberta Land Stewardship Act – No Appeal Legal nature of regional plans 13(1)  A regional plan is an expression of the public policy of the Government and therefore the Lieutenant Governor in Council has exclusive and final jurisdiction over its contents.

  19. New Alberta Land Stewardship Act – No Right to Sue Gov’t for Damages 15(3)  Subject to subsection (5), subsection (1) [a regional plan] does not (a) create or provide any person with a cause of action or a right or ability to bring an application or proceeding in or before any court or in or before a decision‑maker, (b) create any claim exercisable by any person, or (c) confer jurisdiction on any court or decision‑maker to grant relief in respect of any claim.

  20. New Alberta Land Stewardship Act – Removes Role of the Courts to Protect Citizens’ Rights 15(4)  For the purposes of subsection (3), a claim includes any right, application, proceeding or request to a court for relief of any nature whatsoever and includes, without limitation, (a) any cause of action in law or equity, (b) any proceeding in the nature of certiorari, prohibition or mandamus, and (c) any application for a stay, injunctive relief or declaratory relief.

  21. New Alberta Land Stewardship Act – Morton’s Explanation

  22. New Alberta Land Stewardship Act – Power, Power and More Power Implementing regional plans 9(2)  Without limiting subsection (1), a regional plan may (c) whether or not another enactment deals with the same, similar or associated matters, make, as part of the regional plan, lawon any matter within the legislative authority of the Legislature that is designed to advance or implement, or to both advance and implement, the purposes of this Act; (g) manage the surface or subsurface of land and any natural resource; (f) with respect to a planning region, make, as part of the regional plan, law about matters in respect of which a local government body may enact a regulatory instrument;

  23. New Alberta Land Stewardship Act – Powers Over Municipalities Measures to ensure compliance with ALSA regional plans 570.01(1) If the Minister considers that a municipal authorityor regional services commission has not complied with an ALSA regional plan, the Minister may take any necessary measures to ensure that the municipal authorityor regional services commission, as the case may be, complies with the ALSA regional plan. (2) In subsection (1), all necessary measures includes, without limitation, an order by the Minister (a) suspending the authority of a council to make bylaws in respect of any matter specified in the order; (b) exercising bylaw-making authority in respect of all or any of the matters for which bylaw-making authority is suspended under clause (a); (d) withholding money otherwise payable by the Government to the municipal authority or regional services commission pending compliance with an order of the Minister;

  24. New Alberta Land Stewardship Act Regional Advisories Committees Powerless – Cabinet Decides Everything Lieutenant Governor in Council not constrained 5(1)A regional plan may be made or amended whether or not (a) a regional advisory council has been appointed for a planning region to which a regional plan or an amendment to a regional plan applies; (b) a regional advisory council or other person has provided advice about a proposed regional plan or an amendment to a regional plan and irrespective of the advice given and irrespective of whether or not the advice was considered or followed;

  25. Do You Have Any Protections? What About Your Rights? • Good News • Water Act and Public Lands Act restrict Minister’s power to cancel water licences or grazing leases -- require compensation to be paid; • Land Titles Act does not allow the Minister to simply cancel your land title – Expropriation Act protects you • Bad News -- Bill 36-Alberta Land Stewardship Act trumps all other Alberta Acts

  26. New Alberta Land Stewardship Act Trumps All Other Acts – Paramountcy Resolution of conflicting provisions 17(4)  If there is a conflict or inconsistency between this Act and any other enactment, this Act prevails.

  27. Bill 36 – Minister Morton New Alberta Land Stewardship Act – Summary • Cabinet now has the power to extinguish existing rights including water licences, land titles, mineral titles, grazing leases, development permits or any other form of permission granted by government; • assigns the Cabinet the role of central planner for all regions of Alberta – over-rides local planning decisions; • removes rights to compensation • role of Courts to protect property and individual-business rights removed by the Act

  28. New Alberta Land Stewardship Act Morris Seiferling, Assistant Deputy Minister SRD

  29. New Alberta Land Stewardship Act What is the Government is saying now . . . • Does the Alberta Bill of Rights Protect you? • No, according to the Supreme Court of Canada and rulings of our Alberta Courts • Trelenberg v. Alberta Minister of Environment [1980] • If a statute itself contains words that allow land and rights to be taken without compensation, then the Bill of Rights does not protect your property from the government • Bills 19 and 36 allows property rights to be taken without compensation; therefore, the Bill of Rights provides no protection

  30. New Alberta Land Stewardship Act What about the Charter of Rights and Freedoms?

  31. New Alberta Land Stewardship Act How Could this happen in Canada and Alberta? • Constitution Act 1867 – sec. 92(13) – property and civil rights –provincial jurisdiction • Land Titles Act – instruments, land titles • Water Act – water licences • Municipal Govt Act – development permits, • Public Lands Act – grazing leases • all provincial governments have included protections in their laws so that citizen’s property cannot be taken arbitrarily, compensation must be paid, and provide protections through the Courts – no longer true for Alberta

  32. New Alberta Land Stewardship Act – South Saskatchewan Regional Plan Status

  33. New Alberta Land Stewardship Act – Link to the Map http://landuse.alberta.ca/AboutLanduseFramework/LUFPriorityActions/Default.aspx

  34. South Saskatchewan Regional Plan – Environmentally Significant Areas Assessment is Completed

  35. Bill 19 – Land Assembly Project Area Act • allows the Alberta Government to freeze large tracts of private land for potential future use as roads, electricity transmission lines, pipeline or utility corridors • typical freeze is for 30 years or more but can be indefinite – no time limit for the freeze • Cabinet order is filed against your land title and served on your bank and other interest holders • Order prevents you from making changes or improvements to your property without getting permission from the Minister of Infrastructure, Ray Danaluk

  36. Bill 24 – Carbon Capture and Storage Act

  37. Bill 24 – Carbon Capture and Storage Act Common law principle says the owner of the surface owns everything to the center of the earth but for mines and minerals and water CCS is about storing CO2 in the pore space under your land

  38. Bill 24 – Carbon Capture and Storage Act – Common Law on Surface Owner’s Ownership of Pore Space The legal phrase “cujusestsolumejusestusque ad coelum” (which may be loosely translated as whoever owns the land owns it all the way to the heavens and to hell) is typically described as a legal maxim in legal systems based on English common law.  One of the leading US cases upholding this maxim is the 1929 decision of the Kentucky Court of Appeal in Edwards v. Sim 24 SW 2d 619.  In Canada, the Supreme Court quoted this maxim with favour in its 1957 decision in Berkheiser v. Berkheiser (7 D.L.R. (2d) 721). A corporeal hereditament was looked upon at common law as property of a permanent and indestructible character. When land was spoken of there was in mind not only the substances of the soil but also the space in which the substances were contained. To the ownership of land applied the maxim cujusestsolum, ejusestusque ad coelum. In this conception of space filled with substance there is, for the purposes of law, an indestructible base to which incorporeal rights can be related.

  39. Bill 24 – Carbon Capture and Storage Act • Alberta Government has just declared itself to be the owner of the pore space under your land

  40. Bill 24 – Carbon Capture and Storage Act • No compensation is payable to the surface owner • No right to bring a claim in Court

  41. Conclusion – Where we began and Where we’ve Come To In the year 1215, King John of England was forced by a group of his subjects (the landowners) to proclaim the Magna Carta. It limited the King’s power over their lands. It established fundamental rights and freedoms. Through the centuries democratic governments have carried on this tradition . . . But it is no longer the case in Alberta.

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