Land Use Podcast Episode 1 Trailer


So, Eran, several years ago you co-authored
a Guide to Property Rights in Alberta for the Institute, what prompted you to write
that? Back in 2009, the government had introduced
the Alberta Land Stewardship Act, or ALSA, as it is commonly known, which supports the
development of regional plans and integrated planning in the province. One section of that Act provided that no compensation
would be payable to landowners affected by a regional plan, and that caused quite a stir. There were those who claimed that the new
legislation had taken away their property rights, so together with my colleague David
Percy, we wrote a guide to set the record straight so to speak and to inform the public
debate over property rights in Alberta. OK, well, let’s take a step back, what do
we mean when we talk about property and property rights? Well, these are two very difficult and loaded
terms, I think that a useful way of thinking about property and property rights is in terms
of whether your expectations with respect to land and other valuable things are protected
by the legal system. Protected from who? Well from the state and also from neighbours
and strangers. For example, as a landowner I have the right
to prevent anyone from trespassing on my property, and that includes the government, but that
right is not unlimited, as an owner I also have the right to occupy my land and use it
and enjoy it as I see fit, but again that right is not unlimited. So, on those limitations, in the Guide you
refer to parliamentary sovereignty and contrast it with constitutional protection of property
rights, can you elaborate on that? Sure, every society has a tension between
the need for collective action to promote the public interest on the one hand and private
interest and expectations on the other hand. In many countries the balance between those
competing demands is entrenched in some constitutional document that protects private property from
the reach of the majority, usually by requiring that any taking of private property by the
state meets some public use test, and be accompanied by compensation to the owner. Canada does not offer such constitutional
protection of private property. So, to just be clear on that point then, property
rights are not included in the Canadian Charter of Rights and Freedoms, or otherwise in the
Canadian Constitution? No, property rights were left out. So, where would we find it in other documents
that have been foundational in our law? Well, sometimes I get questions about the
Bill of Rights or even the Magna Carta of 1215, none of these documents prevent a federal
or provincial legislature from enacting laws that affect property. So that’s what you mean by parliamentary or
legislative sovereignty, right? It’s that the legislature can pass any laws
within its jurisdiction? That’s right, we inherited this principle
from the British tradition, and it means in practice that checks and balances over the
legislature are political in nature. The government can do anything authorized
by the legislation and an owner has a right to compensation only in so far as provided
by statute.

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