A new development in property rights law in Alberta

A new development in property rights law in Alberta
On Dec. 18, 2012, Alberta proclaimed the Property Rights Advocate Act. The act and the office it established were an immediate response to the Property Rights Task Force Report, issued in February of 2012. But the underlying principles upon which the act and office are based have a deep-rooted, pre-existing foundation in Alberta jurisprudence.

In a 2002 decision, Love v. Flagstaff (County of) Subdivision and Development Appeal Board, Alberta Court of Appeal Chief Justice Catherine Fraser outlined a number of foundational principles relating to property rights in Alberta. Although the decision dealt with municipal land use and development bylaws, the principles articulated in it extend far beyond the local concerns of municipal law.

The court acknowledged certain infringements on private ownership of land were allowed, specifically expropriation of private property for the public good in clearly defined and limited circumstances. To this example might be added limitations to the right of use of privately owned property in land use regimes, or possible restrictions on disposition of property under dependants’ relief legislation.

However, these are to be seen as exceptions to the general rule. As Fraser so clearly articulated: “. . . private ownership of land remains one of the fundamental elements of our Parliamentary democracy. Without certainty, the economical development of land would be an unachievable objective” (emphasis mine).

The court later noted that respect for individual property rights was “a principle firmly entrenched in the legislative planning scheme in effect in Alberta,” and that it “follows that encroachments on individual rights, especially by private parties, should be strictly construed.”

The court also noted two of the essential mechanisms for honouring and protecting those rights were predictability and consistency.  “The public must have confidence that the rules governing land use will be applied fairly and equally. . . . Without this, few would wish to invest capital in an asset the value of which might tomorrow prove relatively worthless. This is not in the community’s collective interest” (emphasis mine).

Thus, protecting private property rights is not a matter of setting off one interest group (land owners, for example) against other groups or society as a whole. Rather, it is a matter of making society as a whole stronger through the establishment and protection of property rights. In this light, private property rights should not be seen as antithetical to human rights. To quote Armen A. Alchian, emeritus professor of economics at the University of California, Los Angeles:

Private property rights do not conflict with human rights. They are human rights. Private property rights are the rights of humans to use specified goods and to exchange them. Any restraint on private property rights shifts the balance of power from impersonal attributes toward personal attributes and toward behavior that political authorities approve. That is a fundamental reason for preference of a system of strong private property rights: private property rights protect individual liberty (emphasis mine).

So, property rights in Alberta are not just a matter of protecting peoples’ “stuff” (although even by itself that is an important element of respect for the individual). In a much broader sense, honouring property rights is both a measure of, and a means toward, a free society.

The Property Rights Advocate Act builds on these foundational principles, and provides a framework to support property owners in stewarding and protecting their ownership rights. There are three main mechanisms defined in the legislation to accomplish this task.

First, is the role of distributing independent and impartial information to the public regarding the right to compensation in situations of expropriation or compensable takings. This can include assistance to the landowner for determining the best process or a resolution mechanism to pursue in seeking a remedy. The office also will be able to provide information about proposed legislation and its likely effect on property owners.

Second, the Property Rights Advocate Office will receive complaints from landowners relating to an expropriation or compensable taking of that person’s land. The advocate then reviews the complaint to determine if the expropriating authority (or the responsible authority in a compensable taking) acted inconsistently with the governing legislation. The advocate issues a report of his findings, which must be taken into consideration by the administrative board or court dealing with the landowner’s issues. This, in turn, may have a bearing on the costs payable by the expropriating authority.

Third, the property rights advocate prepares an annual report, which is submitted to the speaker of the Legislative Assembly. It summarizes the activities of the Property Rights Advocate Office, but also can make any recommendations relating to property rights.

The office is under the Department of Justice, but there is an operational independence and impartiality when it comes to the advocate’s substantive duties.

The property rights advocate is a unique, trailblazing office in Canada, being the first of its kind in the country. I am aware of only two comparable positions in the United States (with Utah and Missouri each having a property rights ombudsman). However, the very newness of the office as a concept has led to sometimes intense discussions about the very role and efficacy of such an office in the first place.

I would argue the precise framework under the act has provided a clearly defined and relevant role for the advocate. By bringing more impartial information to the public, by helping property owners be more secure in their knowledge of their rights and remedies under the law, and by being a public voice for the concerns of property owners, the Property Rights Advocate Office is placed to make a meaningful contribution to the vitality of property rights in Alberta.

These are dynamic and intense times for property rights law in Alberta. The Property Rights Advocate Office is ready to play its part.

Lee Cutforth was recently appointed as the first Alberta property rights advocate.

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