Property rights vs. planning shouldn’t be a battle to the death

Property rights vs. planning shouldn’t be a battle to the death

By Jason Unger, Staff Counsel

What we do with our land is constrained in many ways, whether on our own volition as landowners, through common law rights of neighbours or through the valid regulation of land use for the public good. Recent discussions around repealing the Alberta Land Stewardship Act (aka Bill 36 or ALSA) appear to be focused on framing the intent of the legislation, i.e. planning, as some sinister attempt to supplant property rights.

There are some truisms about property rights in Canada we should face. First, property rights are not constitutionally entrenched as in the U.S., although some would like to see them that way. Second, and related to the first, restrictions on land use, if conducted for a valid land use planning purpose, do not give rise to a right to compensation.  We as landowners recognize this, and to varying degrees accept it. Municipalities can deny a change in land use districts or zoning, thereby limiting development of land, without compensation arising to the landowner. Similarly, provincial and federal governments can prohibit a broad range of land uses without resorting to expropriation.  This being the case, do we need ALSA?

Admittedly there are areas of ALSA that could use amendment, not the least of which is limitation on appeals related to how government discretion is exercised in creating and enforcing regional plans. However, Albertans should be wary of abandoning planning on a provincial scale. As Alberta’s population and related development pressures have continued to grow, we have not being doing well at protecting things that many people value, including prime agricultural land and species at risk.

Recent media reports have cited the ethos of freedom at the time of colonizing Alberta in defence of property rights.  I would argue this freedom extends beyond our property to the freedom of exercising our rights in democratic processes. This includes participating in land use planning processes that will dictate what our province looks like in the future, hopefully with a view to the public good. Does this mean environmental or agricultural preservation may trump individual property rights in certain instances? Possibly and ALSA maintains mechanisms to deal with compensation in most of these instances, although additional clarity in the legislation appears warranted. It also means that individual Albertans should have rights to participate in legal processes around creation and administration of regional plans.

Undoubtedly rural Albertans feel embattled, and rightly so, in relation to certain recent legislative approaches to development, particularly in relation to electrical transmission and the removal of public participation in determining whether such infrastructure is needed. That said, we do need to create a higher vision for the province:  something that lends itself to preserving our most valuable agricultural lands and most sensitive environmental sites. In exercising our freedom, we should have a view to plan for the future.

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