Earlier this year, my colleague David Percy and I published A Guide to Property Rights in Alberta, which we wrote with the generous support of the Alberta Land Institute. So it is no surprise that I was intrigued to learn that this government's first piece of legislation, Bill 1, which was introduced on Monday, is called "Respecting Property Rights Act". It begins with the following words:
WHEREAS private ownership of land is a fundamental element of Parliamentary democracy in Alberta;
WHEREAS the Alberta Bill of Rights recognizes and declares the right of the individual to the enjoyment of property and the right not to be deprived thereof except by due process of law;
WHEREAS the Government is committed to consulting with Albertans on legislation that impacts private property ownership;
WHEREAS the Land Assembly Project Area Act was enacted by the Legislature in 2009 and was amended in 2011 but has not been proclaimed in force; and
WHEREAS the repeal of the Land Assembly Project Area Act reaffirms the government’s commitment to respect individual property rights;
Bill 1 has a single section, and it repeals the Land Assembly Project Area Act. LAPAA was originally proposed in 2009. It gave the government the power to halt all uses and freeze any development of land eyed by the government for large infrastructure projects, such as transportation and utility corridors and water reservoirs. LAPAA was meant to give the government time to plan complex projects, preventing private owners from making investment and development decisions in the interim that were inconsistent with the government's designs.
LAPAA proved to be unpopular with landowners, especially rural landowners, whose lands could be declared part of a "project area". The original Act was problematic for several reasons, but the most serious complaints were that it allowed the government to freeze land indefinitely and without compensation. LAPAA made it clear that the only compensation available to an owner whose land is declared part of a project area is what the owner would receive when the land is purchased by the government or formally expropriated in accordance with the Expropriation Act. This meant that if the land was frozen prior to the title to it ultimately transferring to the Crown, its owner would not be compensated for the loss of use and enjoyment in the interim period, even if very long. Worse still, if the land was frozen, and the government subsequently chose not to proceed with the project, then the owner would get no compensation whatsoever.
To address these and other concerns, the government amended LAPAA in 2011. Some of the amendments included a clearer and narrower definition of the projects that fall under the Act, including time limits for the anticipated completion of the project (but not necessarily time limits on the actual freeze), and a lease-back option until the commencement of the project for owners who consent to sell their land to the government. More importantly, the amendments gave any registered owner of land within a project area the right to compel at any time the Crown to acquire the land by purchase or expropriation.
LAPAA was never proclaimed and never came into force. The government now proposes to repeal it altogether. Land assembly for public projects will still be possible, but only through the usual channels of negotiation or expropriation.
Obviously, the enactment and future repeal of the Land Assembly Project Area Act affects directly only a small percentage of Albertans, so the real significance of Bill 1 is arguably the decision to bring forward legislation "Respecting Property Rights" as the first order of business. The preamble to Bill 1 (above) is particularly revealing. Two comments may be made in respect of the first two paragraphs of the preamble, which show how deep the disagreements and misunderstandings about property rights run in this province. First, the power of government in a democratic society to assemble land for public projects, including by compulsory acquisition from private owners, is fairly uncontroversial. Moreover, the Supreme Court has held (e.g., here) that "There is nothing inherently wrong with a development freeze". LAPAA may raise concerns about process or about the equitable distribution of the burdens of public projects, but the preamble should not to be read as indicating there was anything undemocratic about the legislation which is now proposed to be repealed. Second, the Alberta Bill of Rights only protects against arbitrary deprivations and ensures that public authorities comply with legislative requirements. Whatever protections it affords are, as Bruce Ziff writes in his textbook (6th ed. at p. 88) "overriden by legislative edict". In other words, nothing in LAPAA contravenes the Alberta Bill of Rights in any way.
In the mean time, the government has indicated that Bill 1 is only the beginning of a process of re-evaluation of recent planning legislation – the most critical of which will likely be the Alberta Land Stewardship Act (ALSA). It will be interesting.