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Property Rights: Where did they go? Impacts of New Alberta Legislation on Landowner-Business Rights. Keith Wilson , B.A., LL.B . Wilson Law Office January - 2010. New Legislation Impacting Landowner & Business Rights. Bill 50 – Electric Statutes Amendment Act

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Keith Wilson , B.A., LL.B . Wilson Law Office January - 2010

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Property rights where did they go impacts of new alberta legislation on landowner business rights

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

Keith Wilson, B.A., LL.B.

Wilson Law Office

January - 2010


Keith wilson b a ll b wilson law office january 2010

New Legislation Impacting Landowner & Business Rights

  • Bill 50 – Electric Statutes Amendment Act

  • Bill 19 – Land Assembly Project Area Act

    • authorizes the Provincial Cabinet to freeze land for extended periods of time – restricts compensation

  • Bill 36 – New Alberta Land Stewardship Act

    • new powers for Provincial Cabinet to extinguish existing rights (land titles, freehold mineral titles, development permits, etc)

    • new central-planning by Cabinet that trumps local municipalities and other agencies

  • Bill 24 – Carbon Capture and Sequestration Act

    • government expropriates an element of land rights


Keith wilson b a ll b wilson law office january 2010

Prior to Bill 50 – Electric Utilities Statutes Amendment Act

  • Prior to Bill 50, the AUC process provided due process to ensure that only lines that are truly needed would burden landowners and ratepayers

  • The Alberta Electric System Operator (AESO) and the utility company were required to appear at a public hearing to prove that the line is needed

  • AESO and the utility company’s claims of need would be tested and their witnesses cross-examined


Keith wilson b a ll b wilson law office january 2010

What does Bill 50 do?

  • Legally, Bill 50 moves the decision on “need” from the AUC public hearing room to the private Cabinet room

  • Bill 50 attempts to shift decisions on need from being ‘regulatory’ decisions, into ‘political’ decisions

  • Bill 50 means that instead of going to the AUC to argue ‘need’, you are now required to go to your provincial politicians

  • No other province, no US state, and no other developed country has done what Bill 50 does


Keith wilson b a ll b wilson law office january 2010

Why is Bill 50 problematic?

  • it removes the checks and balances – creates opportunities for abuse and unneeded projects being built at taxpayer expense

  • $16.5 Billion in new transmission lines have been approved by the Cabinet without any hearings on whether the lines are even needed and no cost controls


Keith wilson b a ll b wilson law office january 2010

What can be done to stop the Bill 50 lines?

  • convince the MLAs to stop and rethink Bill 50 – repeal it

  • Participate in the AUC hearing:

    • convince the AUC to turn down the Bill 50 lines on the grounds that the proposed line is not in the public interest given its economic and social costs


Keith wilson b a ll b wilson law office january 2010

What can be done to stop the Bill 50 lines?

  • Section 17 of the Alberta Utilities Act states: 

  • Public interest

  • 17(1)Where the Commission conducts a hearing on an application to construct or operate a transmission line under the Hydro and Electric Energy Act, it shall, in addition to any other matters it may or must consider in conducting the hearing, give consideration to whether construction or operation of the proposedtransmission lineis in the public interest, having regard to the social and economic effects of theline and the effects of the line on the environment.


Keith wilson b a ll b wilson law office january 2010

Expropriation Principles – Expropriation Act

  • if your land is needed for a bona fide public purpose, the landowner/business owner should be made whole

  • providing a service to other Albertans – should be treated with respect and not out of pocket in any respect

  • Expropriation Act sets out compensation principles and processes to ensure fairness and equal bargaining position


Keith wilson b a ll b wilson law office january 2010

Expropriation Act – Compensation Principles


Keith wilson b a ll b wilson law office january 2010

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

  • Order prevents you from making changes or improvements to your property without getting permission from the Minister of Infrastructure, Ray Danaluk

  • 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


Keith wilson b a ll b wilson law office january 2010

Bill 19 – Land Assembly Project Area Act

  • Step 1 – notice and consultation – max. 2 years

  • Step 2 – Cabinet places Project Area Order on your land – indefinite time period

  • Step 3 – Cabinet decides that it will be using your land for the public project – triggers right to buy out at market value only: Expropriation Act principles do not apply


Keith wilson b a ll b wilson law office january 2010

Land Use Planning Before Bill 36

  • locally elected municipal councils make decisions on land use planning

  • based on the idea that:

    • local 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


Keith wilson b a ll b wilson law office january 2010

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”


Keith wilson b a ll b wilson law office january 2010

Bill 36 – Minister Morton New Alberta Land Stewardship Act – New Powers

Sec. 11- Cabinet’s regional plans can amend or “extinguish” existing rights, including property rights, development rights, resource extraction rights, mining rights, water licenses, grazing leases, and any dispositions, approvals or permits issued by the Alberta Government

Sec. 19 - no right to compensation if government approvals, land titles, development permits, subdivision approvals, mineral leases, water licences, 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


Keith wilson b a ll b wilson law office january 2010

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;


Keith wilson b a ll b wilson law office january 2010

New Alberta Land Stewardship Act – What Types of Statutory Consents can be Extinguished?

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


Keith wilson b a ll b wilson law office january 2010

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;


Keith wilson b a ll b wilson law office january 2010

New Alberta Land Stewardship Act – Extinguish Rights?

MLA George Rogers, Jan 13, 2011 -- Landowners concerned about legislation

My office has been contacted by a number of landowners concerned about the impact of recently passed Bills 19, 36 and 50. Here's a summary response to some of the major concerns; for more detailed information, please contact our office.

Issue: It's been suggested that the Alberta Land Stewardship Act (Bill 36) extinguishes the rights of Albertans granted under other Acts.

Answer: This is a false assumption, as many of the rights granted under the other Acts are unaffected by the Alberta Land Stewardship Act, and in some cases, are actually strengthens the protection through this Act.

Issue: It's been suggested that Section 19 of the Alberta Land Stewardship Act states that no person has a right to compensation if a water licence, NRCB approval, land title, development permit, subdivision approval are amended or extinguished.

Answer: This Bill upholds compensation provisions under all existing legislation.


Keith wilson b a ll b wilson law office january 2010

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


Keith wilson b a ll b wilson law office january 2010

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


Keith wilson b a ll b wilson law office january 2010

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


Keith wilson b a ll b wilson law office january 2010

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.


Keith wilson b a ll b wilson law office january 2010

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. . .


Keith wilson b a ll b wilson law office january 2010

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.


Keith wilson b a ll b wilson law office january 2010

New Alberta Land Stewardship Act –

No Right to Sue Government 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.


Keith wilson b a ll b wilson law office january 2010

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.


Keith wilson b a ll b wilson law office january 2010

New Alberta Land Stewardship Act – Power, Power and More Power

Implementing regional plans

9(2)  Without limiting subsection (1), a regional plan may

  • 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;

  • manage whatever is necessary to achieve or maintain an objective or policy, including managing all or part of the cause of an effect or those matters that affect or that might affect the economy, social objectives, the environment, human health or safety, a species or any element of any of them;

  • 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;


Keith wilson b a ll b wilson law office january 2010

New Alberta Land Stewardship Act – Power, Power and More Power

Implementing regional plans

9(2)  Without limiting subsection (1), a regional plan may

(g)manage the surface or subsurface of land and any natural resource;

(m)define, for the purposes of a regional plan, any term in this Act in a manner that is not inconsistent with this Act;


Keith wilson b a ll b wilson law office january 2010

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;


Keith wilson b a ll b wilson law office january 2010

New Alberta Land Stewardship Act – Powers Over Municipalities

  • Government says its really not taking powers away from municipalities—they say ”government is only telling municipalities that they will have to align their land use and planning documents to with the Cabinet's requests”

  • Reality is that the Cabinet:

    • can impose its will over the wishes the local community;

    • reverse past decisions of the local community;

    • create uncertainty and economic impacts for existing landowners, farms, and businesses;

    • ignore the wishes of the local community;

  • The fundamental premise of Bill 36 offends the principle that locally affected people are better positioned to make local decisions.

  • Locally elected officials are more accessible and accountable than Cabinet


Keith wilson b a ll b wilson law office january 2010

New Alberta Land Stewardship Act – Morton’s Explanation


Keith wilson b a ll b wilson law office january 2010

New Alberta Land Stewardship Act

What about the Regional Advisories Council?

  • Regional Advisory Council = RAC


Keith wilson b a ll b wilson law office january 2010

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;


Keith wilson b a ll b wilson law office january 2010

New Alberta Land Stewardship Act

Regional Advisories Committees Powerless – Cabinet Decides Everything

  • Cabinet decides:

    • if there is going to be a RAC;

    • who will be on it;

    • what the terms of reference will be;

    • does not have to even appoint a RAC;

    • does not have to follow the RAC’s advice;

    • does not even have to read or consider the RAC’s report.


Keith wilson b a ll b wilson law office january 2010

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.


Keith wilson b a ll b wilson law office january 2010

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


Keith wilson b a ll b wilson law office january 2010

New Alberta Land Stewardship Act

Morris Seiferling, Assistant Deputy Minister SRD


Keith wilson b a ll b wilson law office january 2010

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 except either

(a)as expressly provided for under Part 3, Division 3, or

(b)as provided for under another enactment.


Keith wilson b a ll b wilson law office january 2010

New Alberta Land Stewardship Act –

Conservation Directives

Part 3 - Division 3Conservation Directives

36Right to compensation

37Conservation directives

38Notice to title holders

39Right to compensation for a conservation directive

40Crown pays compensation

41Compensation Board to resolve disputes

42Appeal

43Conservation directive regulations

44Municipal authority unaffected


Keith wilson b a ll b wilson law office january 2010

New Alberta Land Stewardship Act –

Conservation Directives (ss. 36 to 44)

  • Cabinet can impose restrictions on land through a Conservation Directive – compensation is payable

  • Only applies to restrictions imposed on land owner or a land lessee

  • Conservation Directive cannot be used to restrict a water licence, a Crown mineral lease, among other rights – no compensation entitlement


Keith wilson b a ll b wilson law office january 2010

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 except either

(a)as expressly provided for under Part 3, Division 3, or

(b)as provided for under another enactment.


Keith wilson b a ll b wilson law office january 2010

New Alberta Land Stewardship Act –

ALSA Doesn’t Trigger Rights under other Acts

Water Act Example:

- Director at Alberta Environment can cancel or suspend a water licence in a narrow set of circumstances – if he does, compensation is payable

- Compensation is only payable where the “Director” at Alberta Environment ‘cancels’ your licence – no compensation is triggered under the Water Act when Cabinet uses its s. 11 ALSA extinguishment powers


Keith wilson b a ll b wilson law office january 2010

New Alberta Land Stewardship Act –

ALSA Doesn’t Trigger Rights under other Acts

  • Land Titles Act Example:

  • the only compensation payable under the Land Titles Act arises when the Registrar makes a mistake on a title – claims can be made to an Assurance Fund

  • no compensation is triggered under the Land Titles Act when Cabinet uses its s. 11 ALSA extinguishment powers


Keith wilson b a ll b wilson law office january 2010

New Alberta Land Stewardship Act –

ALSA Doesn’t Trigger Compensation Rights under other Acts

  • Mines and Minerals Act

  • Minister of Energy can ‘cancel’ mineral leases in a variety of situations

  • compensation is payable under the Mineral Rights Compensation Regulation

  • - however, compensation is only payable where the Minister of Energy ‘cancels’ the mineral lease under the Mines and Minerals Act – no compensation is triggered under the Mines and Minerals Act when Cabinet uses its s. 11 ALSA extinguishment powers


Keith wilson b a ll b wilson law office january 2010

New Alberta Land Stewardship Act – Cabinet Tools

Section 11 Powers v. Conservation Directives

  • When developing Regional Plans, Cabinet will have a choice whether to use:

  • sec. 11 “extinguishment” powers and not pay compensation;

    • or

  • (2) Conservation Directives with the requirement to pay compensation (but only where your land title is affected)


  • Keith wilson b a ll b wilson law office january 2010

    New Alberta Land Stewardship Act – Cabinet Tools

    Section 11 Powers and s. 11(2) Provisions

    (2)  Before a regional plan includes a provision described in subsection (1), a Designated Minister must

    (a)give reasonable notice to the holder of the statutory consent of the objective or policy in the regional plan that the express reference under subsection (1) is intended to achieve or maintain, and

    (b)provide an opportunity for the consent holder to propose an alternative means or measures of achieving or maintaining the policy or objective without an express reference referred to in subsection (1), including, if appropriate, within a regulatory negotiation process referred to in section 9(2)(j).


    Keith wilson b a ll b wilson law office january 2010

    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


  • Keith wilson b a ll b wilson law office january 2010

    New Alberta Land Stewardship Act

    What about the Charter of Rights and Freedoms?


    Keith wilson b a ll b wilson law office january 2010

    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 licenses

      • 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


  • Keith wilson b a ll b wilson law office january 2010

    Government’s Own Description of Its New Powers

    Dr. Morton:

    Section 11 allows a regional plan to alter or amend

    a statutory consent. This authority is considered necessary to allow regional plans to achieve their mandate to manage the cumulative effects.

    In part 2 section 15 of the bill sets out the effect of a regional plan on the provincial government, its boards and agencies and local governments and authorities. It makes it clear that the regional plans are binding unless otherwise provided. The regional plans have the legal status of regulations and in case of conflicts with other regulations take precedence.

    Sections 15(3) and (4) make it clear that regional plans do not create any new cause of legal actions in our courts of law except for the commissioner under section 18.

    (May27, 2009)


    Keith wilson b a ll b wilson law office january 2010

    Opposition Requests that the Role of the Courts be Reinstated to Protect Albertans and their Rights

    Mr. Hehr: There are some things that concern me in this bill as well. They were brought up by members earlier. Primarily it’s again with the concentration of power, that this bill seems to put all the decision making power into the hands of the cabinet, with no recourse to courts or other appeal mechanismsthat can be put in place. Where it stops is, I guess, for all intents and purposes, the cabinet. The government is the single deciding force that can implement. It can change. It can withhold money. It can consult. It doesn’t have to consult. It can do whatever the heck it wants in regard to land-use decisions once this bill is in place.

    (April 29, 2009)


    Keith wilson b a ll b wilson law office january 2010

    Government Response to Opposition Party’s request to reinstate the Role of the Courts

    Dr. Morton: Thank you, Chair. What was only hinted at in the earlier amendments is now out in the open for everybody to see. The opposition members would like to see as much of this as possible pushed over into the courts.

    Dr. Swann: It’s freedom.

    Dr. Morton: It’s not freedom. It’s loss of control. It has nothing to do with the impartiality of the judges. Judges have no training whatsoever in the scientific and statistical analysis that’s typical in this type of policy. To move those kinds of decisions over to the

    judges is to move it into a forum where there’s, frankly, no expertise. Judges are trained to make legal decisions. These are policy decisions. They’ll be made by responsible ministers working with civil servants who are trained in the various biological and environmental sciences. That’s where it should be.

    (May 27, 2009)


    Keith wilson b a ll b wilson law office january 2010

    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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