Presentation on theme: "Dismantling Property Rights Bills 19, 24, 36 & 50"— Presentation transcript:
1 Dismantling Property Rights Bills 19, 24, 36 & 50 Action Surface Rights AssociationWednesday, March 9, 2011Richard JonesWildrose Alliance Party of AlbertaCandidate for Calgary-Acadia
2 PC LegislationLand Assembly Project Area Act, S.A. 2009, c. L-2.5 (Bill 19)Alberta Land Stewardship Act, S.A. 2009, c. A (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)
3 Land Assembly Project Area Act (Bill 19) Assented to May 26, 2009The Act comes into force on ProclamationAlberta 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.”
4 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. 6Crown may acquire the land by purchase or under Expropriation Act: s. 7Money required for the acquisition of the land shall be paid out of money voted by the Legislature for that purpose: s. 8
5 Principles of Compensation under Expropriation Act Market value of land expropriatedAmount expected to be realized if sold in open market by a willing seller to a willing buyer.Damages attributable to disturbanceValue to the owner of any element of special economic advantage arising out of owner’s occupation of the landsDamages for injurious affection
6 Disturbance Damage Entire Taking Cost of inventory assessment & management time for supervising moveMoving and packingLegal and other costs in acquiring other premisesLoss of sale of inventory and unsaleable equipmentArchitect’s fees and contractor’s fees thrown awayPromotion expenses advertising move, site preparation at new location, excess property taxes, and management and administrations costsRent of premises occupied pending purchase of replacement premisesLoss of profits from sale of crops
7 Injurious Affection Partial Taking Severance damageLoss of access & change in shapeAny reduction in market value to the remaining landNoise, dust & glareOffensive useIncidental damagesLoss of pasture rental during constructionFixed costs carried by a smaller land baseCost of alternative means of irrigation or loss of yield due to loss of former means of irrigation
8 Trap for the Unwary Landowner If Landowner triggers purchase of lands, he is entitled to FMV of lands onlyOnce government decides to actually purchase the lands then landowner is entitled to full compensation under the Expropriation ActDevelopment on your lands may be sterilized while the government decides whether it will proceed with project planQ. 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?
9 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 landsCabinet power to remove any buildings, improvements, materials or animals from Project Area
10 Bill 19 - EnforcementIf you contravene regulations, Minister may serve you with an enforcement order directing you tocease contraventionstop doing something, change the way you are doing itremedy the contraventionRemove or demolish a structureRestore the your land to its previous condition
11 PenaltyMax. of $100,000 fine, 2 yrs imprisonment or both for individualMax. of $1M fine for corporationDefenceOn the balance of probabilities you took all reasonable steps to prevent commission of offence – reverse onusHigher than the criminal law standard of “reasonable doubt”
12 Alberta Land Stewardship Act (Bill 36) Bill 36 introduced by Ted MortonAssented to June 4, 2009Proclaimed in force October 1, 2009Conservation Easement Registration Regulation, Alta Reg. 129/2010 (filed August 6, 2010)Bill 10 – Alberta Land Stewardship Amendment Act
13 Regional Planning in Alberta 1883, NWT Municipal Ordinance1905 Enter ConfederationTown Planning Act, 1913Town Planning and Preservation Act, 1928Passed at behest of Premier Brownlee to preserve and enhance Alberta’s natural beauties and amenitiesCreated Provincial Planning Advisory BoardTown Planning Act, 1929Regional Planning Commission – voluntary with no powers of enforcement
14 Planning Act, 1977 Regional Planning 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)Commission’s primary function was to prepare and adopt a regional plan, after due public consultationOnce instrument approved by Alberta Planning Board and ratified by Minister, it became effectiveAll municipal bylaws, action and development could not be inconsistent with the planPlans 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 detailEach 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 developmentIndustrial development was to be spread equitably among urban and rural municipalities in the region
15 Part 17, Municipal Government Act Effective September 1, 1995, Part 17 came into force as a replacement for the Planning ActRegional Plans abolished.
16 Rationale for Regional Planning What happened?Ongoing disputes among municipal governments in Edmonton region concerning growth patternsCapital Region Growth PlanDealt 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 infrastructureCalgary area’s growing pains
17 Bill 36 Concerns Purpose is too broad Statutory consents may be extinguished or alteredLegal nature of regional plansBinding nature of regional plansNo right to compensationToo costly
18 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.”
19 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.
20 Examples of Statutory Consents Certificate of Title: s. 44, Land Titles ActRegistration against Certificate of Title such as easement, restrictive covenant, etc.Water Licence: s. 51, Water ActSubdivision Approval or Plan of SubdivisionDevelopment Permit
21 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.
22 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)
23 Who is Bound? A regional plan binds: Crown Local government bodies Decision-makers, andAll 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 authoritiesCould include any person who issues a municipal license i.e.. business license, even a dog license!
24 No Compensation S. 19 No right to expropriation damages “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
25 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.
26 Cost of ComplianceLocal government bears the cost of reviewing its own regulatory instruments (bylaws, rules, codes, etc. see s. 2(w))Staff time diverted from local government prioritiesAdditional expense will be required to determine complianceHiring of outside professional consultantsDue diligence defenceMunicipalities with limited revenue and human resources will have difficulty undertaking such an extensive review and will likely failPenalty for failure?
27 Electric Statutes Amendment Act (Bill 50) Amends, among others, the Electric Utilities Act“Critical Transmission Infrastructure” includes:Two high voltage current transmission facilities between Edmonton and Calgary regions, with a a minimum of megawatts each.Two single circuit 500 kV alternating current transmission facilities from Edmonton region to Fort McMurray region.
28 No Needs or Public Interest Requirement Sections 25, 34 and 36 of Electric Utilities Act do not apply to critical transmission infrastructureTypically, Independent System Operator must show that proposed infrastructure is “required to meet the needs of Alberta and is in the public interest”: s. 34In 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
29 Cost of ElectricityBill 50 and the corresponding transmission projects may double or triple price of electricity for consumers, businesses and farmersEstimated cost for only these four projects is approximately $5.7 billion$1,540 per Albertan
30 Carbon Capture and Storage Amendment Act (Bill 24) Bill 24 introduced by Ron Liepert (Minister of Energy)Came into force on December 2, 2010It amended to the Mines and Minerals Act to include “pore space”
31 Bill 24 Concerns Confiscation of property Unlimited liability of Alberta taxpayers for damages arising from any CCSExtensive powers of Minister in relation to access and location of storage of carbonUnproven technology – not a proven safe method to deal with emissions
32 Confiscation of 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, orii) 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.
33 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 containsLiquid phasesGas phases
34 Soil PoresMacropores (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.
36 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,
37 Unlimited Liability Assumption of liability 121 On the Minister issuing a closure certificate to a lessee … the Crownbecomes the owner of the captured carbon dioxideassumes all obligations of the lesseereleases the lessee from any liabilityindemnifies the lessee against any liability for damages caused by lessee’s injection of captured carbon dioxide
38 Minister decides where to inject CO2 Minister unilaterally grants rights to inject on private landsSurface Rights Board will determine compensation for placement of facilities on your lands, not for use of pore spaveWhat is proper amount of compensation???
39 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 leakIt reacts with the water to form carbonic acidResearchers warn the acid could leach elements such as arsenic from underground mineral formations
40 This PC Government has launched an assault on property rights It is time for change
41 A Wildrose Government will: Restore property rights by repealing Bills 19, 24, 36 and 50Protect 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 FreedomsEnsure no private property will be taken for public use without full, fair and timely compensation