Dismantling Property Rights

Bills 19, 24, 36 & 50

Action Surface Rights AssociationWednesday, March 9, 2011

Richard JonesWildrose Alliance Party of Alberta

Candidate for Calgary-Acadia

PC Legislation

• Land Assembly Project Area Act, S.A. 2009, c. L-2.5 (Bill 19)

• Alberta Land Stewardship Act, S.A. 2009, c. A-26.8 (Bill 36)

• Electric Statutes Amendment Act, 2009, S.A. 2009, c. 44 (Bill 50)

• Carbon Capture and Storage Statutes Amendment Act, S.A. 2010, c. 14 (Bill 24)

Land Assembly Project Area Act (Bill 19)

• Assented to May 26, 2009

• The Act comes into force on Proclamation

• Alberta Infrastructure says:

“[It] allows the provincial government to plan for the long-term future of the province by buying land for large-scale, long-term transportation and water management projects, like ring roads and reservoirs.”

Bill 19 Concerns• No “Needs” analysis for public projects

• Landowner not entitled to any compensation as a result of project area order filed against certificate of title.

• Landowner may request the Crown to purchase the land but only entitled to market value of land as compensation: s. 6

• Crown may acquire the land by purchase or under Expropriation Act: s. 7

• Money required for the acquisition of the land shall be paid out of money voted by the Legislature for that purpose: s. 8

Principles of Compensation under Expropriation Act

• Market value of land expropriatedo Amount expected to be realized if sold in open market by a willing

seller to a willing buyer.

• Damages attributable to disturbance

• Value to the owner of any element of special economic advantage arising out of owner’s occupation of the lands

• Damages for injurious affection

Disturbance Damage Entire Taking

• Cost of inventory assessment & management time for supervising move

• Moving and packing

• Legal and other costs in acquiring other premises

• Loss of sale of inventory and unsaleable equipment

• Architect’s fees and contractor’s fees thrown away

• Promotion expenses advertising move, site preparation at new location, excess property taxes, and management and administrations costs

• Rent of premises occupied pending purchase of replacement premises

• Loss of profits from sale of crops

Injurious AffectionPartial Taking

• Severance damageo Loss of access & change in shape

• Any reduction in market value to the remaining lando Noise, dust & glare

o Offensive use

• Incidental damageso Loss of pasture rental during construction

o Fixed costs carried by a smaller land base

o Cost of alternative means of irrigation or loss of yield due to loss of former means of irrigation

Trap for the Unwary Landowner

• If Landowner triggers purchase of lands, he is entitled to FMV of lands only

• Once government decides to actually purchase the lands then landowner is entitled to full compensation under the Expropriation Act

• Development on your lands may be sterilized while the government decides whether it will proceed with project plan

• Q. Will a bank grant security on your lands that have been sterilized by a project plan?

• Q. What will happen to your existing line of credit secured against your lands when your bank finds out that your lands have been sterilized – can the decreased value still secure your line of credit or will your line of credit be decreased or called?

Loss of Control of Your Lands

• Once your lands are within a Project Area, Govt can make regulations “respecting the control, restriction, prohibition of any kind of use, development or occupation” of your lands

• Cabinet power to remove any buildings, improvements, materials or animals from Project Area

Bill 19 - Enforcement• If you contravene regulations, Minister may serve

you with an enforcement order directing you to

o cease contravention

o stop doing something, change the way you are doing it

o remedy the contravention

• Remove or demolish a structure

• Restore the your land to its previous condition

Penalty• Max. of $100,000 fine, 2 yrs imprisonment or

both for individual• Max. of $1M fine for corporation• Defence

o On the balance of probabilities you took all reasonable steps to prevent commission of offence – reverse onus

o Higher than the criminal law standard of “reasonable doubt”

Alberta Land Stewardship Act(Bill 36)

• Bill 36 introduced by Ted Morton

• Assented to June 4, 2009

• Proclaimed in force October 1, 2009

• Conservation Easement Registration Regulation, Alta Reg. 129/2010 (filed August 6, 2010)

• Bill 10 – Alberta Land Stewardship Amendment Act

Regional Planning in Alberta

• 1883, NWT Municipal Ordinance

• 1905 Enter Confederation

• Town Planning Act, 1913

• Town Planning and Preservation Act, 1928o Passed at behest of Premier Brownlee to preserve and enhance

Alberta’s natural beauties and amenities

o Created Provincial Planning Advisory Board

• Town Planning Act, 1929o Regional Planning Commission – voluntary with no powers of

enforcement

Planning Act, 1977• Regional Planning

o Lieutenant Governor in Council empowered to create regional planning areas by regulation, each under control of a regional planning commission comprised of local council members from local government units in the region (appointed from Province)

o Commission’s primary function was to prepare and adopt a regional plan, after due public consultation

o Once instrument approved by Alberta Planning Board and ratified by Minister, it became effective

o All municipal bylaws, action and development could not be inconsistent with the plan

o Plans were to focus in physical use and not social or economic matters, and were to be drafted in terms of general goals and objectives while avoiding ponderous detail

o Each plan was to incorporate policies prescribed in the Board’s documents on a number of topics:

• Good agricultural land was to be preserved against county residential development

• Industrial development was to be spread equitably among urban and rural municipalities in the region

Part 17, Municipal Government Act

• Effective September 1, 1995, Part 17 came into force as a replacement for the Planning Act

• Regional Plans abolished.

Rationale for Regional Planning

• What happened?o Ongoing disputes among municipal governments in Edmonton region

concerning growth patterns

o Capital Region Growth Plan

• Dealt with policies for transportation, utility and recreation corridors, environmental sensitive lands, coordination of planning, land supply for different uses, development densities, priority of growth areas, location of agricultural lands, and development and location of infrastructure

o Calgary area’s growing pains

Bill 36 Concerns

• Purpose is too broad

• Statutory consents may be extinguished or altered

• Legal nature of regional plans

• Binding nature of regional plans

• No right to compensation

• Too costly

Frederick Laux – Planning Law

Expert

“The Act mandates that each regional plan must describe a vision for and state one or more objectives of the region. It would appear that plans will deal with economic, environmental and social matters that go far beyond regulating land use, although that will be an obvious result as well.”

Extinguish Statutory Consents

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.

What is statutory consent?

“statutory consent” means a permit, licence, registration, approval, authorization, disposition, certificate, allocation, agreement or instrument issued under or authorized by an enactment or regulatory instrument.

Examples of Statutory Consents

• Certificate of Title: s. 44, Land Titles Act

• Registration against Certificate of Title such as easement, restrictive covenant, etc.

• Water Licence: s. 51, Water Act

• Subdivision Approval or Plan of Subdivision

• Development Permit

Application of Regional Plans

• A regional plan 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: subs. 12(2)

• Even if there is no regional plan in relation to your geographic regional another region’s plan may control your activity or land use.

• Too broad – “effect” means any effect on the economy, the environment, a community, human health or safety, a species or an objective in a regional plan, regardless of the scale, nature, intensity, duration, frequency, probability or potential of the effect.

• This legislation goes well past the regulation of land use.

Legal Nature of Regional Plan

• Cabinet has exclusive and final jurisdiction over its content: s. 13(1)

• Regional Plans are considered to be regulations: s. 13(2)

• Meaning of Regional Plan to be obtained from wording of plan – no use by court of extrinsic evidence if ambiguity: s. 13(3)

Who is Bound?• A regional plan binds:

o Crown

o Local government bodies

o Decision-makers, and

o All other persons

“decision-maker” means a person who, under an enactment or regulatory instrument, has authority to grant a statutory consent, and includes a decision-making body.

• Includes subdivision and development authorities

• Could include any person who issues a municipal license i.e.. business license, even a dog license!

No Compensation• S. 19

“No 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 except either (1) as a result of a conservation directive, or (2) as provided for under another enactment.”

• No right to expropriation damages

Compliance Declarations

20(1) When a regional plan is made, every local government body affected by the regional plan must

(a) review its regulatory instruments, and

(b) decide what, if any, new regulatory instruments or changes to regulatory instruments are required for compliance with the regional plan.

(2) Every local government body affected by the regional plan must, within the time set in or under, or in accordance with, the regional plan,

(a) make any changes or implement new initiatives to comply with the regional plan, and

(b) file a statutory declaration with the secretariat that the review required by this section is complete and that the local government body is in compliance with the regional plan.

Cost of Compliance• Local government bears the cost of reviewing its own regulatory

instruments (bylaws, rules, codes, etc. see s. 2(w))

• Staff time diverted from local government priorities

• Additional expense will be required to determine compliance

• Hiring of outside professional consultants

o Due diligence defence

• Municipalities with limited revenue and human resources will have difficulty undertaking such an extensive review and will likely fail

• Penalty for failure?

Electric Statutes Amendment Act (Bill 50)

• Amends, among others, the Electric Utilities Act

• “Critical Transmission Infrastructure” includes:o Two high voltage current

transmission facilities between Edmonton and Calgary regions, with a a minimum of 2000 megawatts each.

o Two single circuit 500 kV alternating current transmission facilities from Edmonton region to Fort McMurray region.

No Needs or Public Interest Requirement

• Sections 25, 34 and 36 of Electric Utilities Act do not apply to critical transmission infrastructure

• Typically, Independent System Operator must show that proposed infrastructure is “required to meet the needs of Alberta and is in the public interest”: s. 34

• In the past, landowner could protect land if proposed infrastructure was (i) not needed, or (ii) not in the public interest.

• Now, your land can be taken and the only issue is landowner compensation.

• No requirement for fairness or accountability

Cost of Electricity• Bill 50 and the corresponding

transmission projects may double or triple price of electricity for consumers, businesses and farmers

• Estimated cost for only these four projects is approximately $5.7 billion

• $1,540 per Albertan

Carbon Capture and Storage Amendment Act

(Bill 24)

• Bill 24 introduced by Ron Liepert (Minister of Energy)

• Came into force on December 2, 2010

• It amended to the Mines and Minerals Act to include “pore space”

Bill 24 Concerns

• Confiscation of property

• Unlimited liability of Alberta taxpayers for damages arising from any CCS

• Extensive powers of Minister in relation to access and location of storage of carbon

• Unproven technology – not a proven safe method to deal with emissions

Confiscation of Pore Space

Pore space

15.1(1)  It is hereby declared that

(a) no grant from the Crown of any land in Alberta, or mines or minerals in any land in Alberta, has operated or will operate as a conveyance of the title to the pore space contained in, occupied by or formerly occupied by minerals or water below the surface of that land,

(b) the pore space below the surface of all land in Alberta is vested in and is the property of the Crown in right of Alberta and remains the property of the Crown in right of Alberta whether or not

(i) this Act, or an agreement issued under this Act, grants rights in respect of the subsurface reservoir or in respect of minerals occupying the subsurface reservoir, or

ii) minerals or water is produced, recovered or extracted from the subsurface reservoir,

and

(c) the exception of pore space under this section is deemed to be an exception contained in the original grant from the Crown for the purposes of section 61(1) of the Land Titles Act.

What is “Pore Space”?• Soil consists of three

difference phases.

• A solid phase (~45%) that contains mainly minerals of varying sizes as well as organic compounds.

• The rest is pore space, which containso Liquid phases

o Gas phases

Soil Pores• Macropores (d>0.08mm) occur between aggregates

(interped pores) or individual grains in coarse textured soil (packing pores) and may be formed by soil organisms (biopores).  They allow ready movement of air and the drainage of water and provide space for roots and organisms to inhabit the soil.

• Micropores (d<0.08mm) occur within aggregates.  They are usually filled with water and are too small to allow much movement of air.  Water movement in micropores is extremely slow and much of the water held by them is unavailable to plants.

Pore Space

Confiscation without Compensation

(4)  It is deemed for all purposes, including for the purposes of the Expropriation Act, that no expropriation occurs as a result of the enactment of this section.

(5)  No person has a right of action and no person shall commence or maintain proceedings

(a) to claim damages or compensation of any kind, including, without limitation, damages or compensation for injurious affection, from the Crown, or

(b) to obtain a declaration that the damages or compensation referred to in clause (a) is payable by the Crown,

Unlimited LiabilityAssumption of liability121 On the Minister issuing a closure certificate to a lessee … the Crown

becomes the owner of the captured carbon dioxide

assumes all obligations of the lessee

releases the lessee from any liability

indemnifies the lessee against any liability for damages caused by lessee’s injection of captured carbon dioxide

Minister decides where to inject

CO2

• Minister unilaterally grants rights to inject on private lands

• Surface Rights Board will determine compensation for placement of facilities on your lands, not for use of pore spave

• What is proper amount of compensation???

CCS Storage Unproven Technology

Edmonton Journal – December 14, 2010

• “Nobody has actually done CCS into a saline aquifer on a commercial scale from a coal plant”

• Fluid carbon dioxide is lighter than water, so it will rise to the top of a saline aquifer, making it likelier to leak

• It reacts with the water to form carbonic acid

• Researchers warn the acid could leach elements such as arsenic from underground mineral formations

This PC Government has launched an assault on

property rights

It is time for change

A Wildrose Government

will:

• Restore property rights by repealing Bills 19, 24, 36 and 50

• Protect property rights by entrenching basic property rights in the Alberta Bills of Rights and spearheading a national initiative to add property rights to the Canadian Charter of Rights and Freedoms

• Ensure no private property will be taken for public use without full, fair and timely compensation