Bill C-222 (Historical)

An Act to amend the Expropriation Act (protection of private property)

This enactment amends the Expropriation Act to provide that the power of the Governor in Council to waive the requirement for a public hearing in respect of an objection to the intended expropriation of an interest in land or immovable real right may not be exercised in certain circumstances.

Expropriation Act

[Matthew Green, NDP, Hamilton Centre, ON]

Madam Speaker, I am honoured to rise today in response to private member's bill, Bill C-222, an act to amend the Expropriation Act, which is a protection of private property, and was prepared and presented by the hon. member for Renfrew—Nipissing—Pembroke. Contained within and for the purpose of restating the bill's intention, it adds specific exemptions to the Expropriation Act under sections 10(11) and 19(3) and reads that the Expropriations Act:

—does not apply if the interest or right to which the notice of intention relates is intended to be expropriated by the Crown for the purpose of restoring historical natural habitats or addressing, directly or indirectly, climate variability, regardless of whether or not that purpose is referred to in the notice or described in the notice as the primary purpose of the intended expropriation.

The members of the House may recall that in moving the bill to the second reading in November, the hon. member began her intervention with a land acknowledgement that Parliament was on Algonquin Anishinabe territory, which is subject to an ongoing land claim process. The hon. member then proceeded to suggest that the current movement to protect private property landowners' rights in Ontario started in her riding of Renfrew—Nipissing—Pembroke.

If the landowners association in her constituency is upset about the expropriation of private property in response to catastrophic climate change, wait until it finds out about the ongoing and generational dispossession of indigenous lands by the Crown. Wait until they learn about Oka, Ipperwash, Unist'ot'en, 1492 and Wet'suwet'in.

It would appear, based on the private member's last intervention, that she would seek to elevate the property rights to a constitutional consideration on parity with our charter rights. That is a reference to the fifth amendment of the United States that she would seek to enshrine the rights of private property above all societal considerations and specifically as they relate to what appears to be a form of the denial of climate change.

I would suggest that before we could in good faith consider this request that we have a moral and indeed a legal obligation to first address the unceded territorial claims of indigenous first nations, Métis and Inuit.

The hon. member's underlying intention in the bill seems, at least to us, to force the federal government to recognize that the plan in 2014 is in fact responsible for the flooding of the Ottawa Valley in 2017 and 2019, which is denying the real reason for flooding, which is climate change, and to hold public consultations under the Expropriation Act. In addition, it would appear as though the hon. member wants the federal government to compensate residents affected by the flooding. Therefore, Bill C-222 contains no provisions of compensation.

I want to acknowledge the very real and devastating impacts on those members in her riding who may have been owners of one of the 900 buildings affected by the flooding. However, how can we even begin to further enshrine settler rights in response to these 900 buildings impacted by climate change when there are currently 900 unsettled first nation land claims that are historically based on the racist doctrine of discovery and the British colonial legal fiction called Terra Nullius, which effectively erased a millennia of indigenous inhabitations of these lands pre-European contract?

While I am no expert in the Robinson-Huron Treaty for incidents of clear and intentional treaties by the Crown, such as the Haldimand Treaty of October 25, 1784, for the purpose of this debate, I would like to remind members of the House who may not know or may have forgotten the text of this treaty, which states:

Whereas His Majesty having been pleased to direct that in consideration of the early attachment to his cause manifested by the Mohawk Indians and of the loss of their settlement which they thereby sustained—that a convenient tract of land under his protection should be chosen as a safe and comfortable retreat for them and others of the Six Nations, who have either lost their settlements within the Territory of the American States, or wish to retire from them to the British—I have at the earnest desire of many of these His Majesty's faithful Allies purchased a tract of land from the Indians situated between the Lakes Ontario, Erie and Huron, and I do hereby in His Majesty's name authorize and permit the said Mohawk Nation and such others of the Six Nation Indians as wish to settle in that quarter to take possession of and settle upon the Banks of the River commonly called Ouse or Grand River, running into Lake Erie, allotting to them for that purpose six miles deep from each side of the river beginning at Lake Erie and extending in that proportion to the head of the said river, which them and their posterity are to enjoy for ever.

Given under my hand and seal at arms at the Castle of St. Lewis at Quebec this twenty-fifth day of October one thousand seven hundred and eighty-four and in the twenty-fifth year of the reign of our Sovereign Lord George The Third by the Grace of God of Great Britain, France, and Ireland King Defender of the Faith and so forth.

Frederick Haldimand

By His Excellency's Command

More specifically, given the act of reclamation of unceded Haudenosaunee Confederacy territories, and to underscore the importance of the point, I shall add to this debate, for the good and welfare of the House, that an excerpt from the document entitled, “Land Rights of the Six Nations of the Grand River”, submitted by the Six Nations Elected Council, states that the promising of their tract consisted of 950,000 acres within their Beaver Hunting Grounds along the Grand River to the “Mohawk Nation and such others of the Six Nations Indians as wish to settle in that Quarter”.

In the application of their allegiance to the King, and for the loss of their settlements to the American States, they were to take possession and settle upon the banks of the river commonly called the Grand River, running from Lake Erie and allotting for that purpose six miles on either side of the Grand.

Therefore, although the Haldimand Treaty was unequivocally promised to the Six Nations, this tract, approximately 275,000 acres of land up to the source of the Grand River, remains outstanding to the present date as treaty land entitlement to the Six Nations people.

In contrast to the private property rights of settlers, as expressed in Bill C-222, Six Nations of the Grand River's experiences of Canada's specific and comprehensive land claims policies, which have been unsuccessful as existing policy, cannot provide proper restitution or compensation for Six Nations' validated claims and others yet to be determined. Previous negotiations have proved unsuccessful, as the extinguishment requirement is unacceptable and non-negotiable. Six Nations of the Grand River has previously lobbied MPs from all parties, and is looking for justice in its land rights issues. As the group realizes, Canada does not have enough money to bring historic land issues to resolution under existing policies.

Six Nations has also taken its land rights issues to the United Nations Permanent Forum on Indigenous Issues and to the Canadian courts commencing in 1995. This juxtaposition of the Crown's legislative protections for those deemed to be holding private property versus the original inhabitants of these lands is a grave admission to the ongoing colonialism of Canada with respect to first nations, Métis and Inuit.

Perhaps it would be more appropriate and timely, given the current government's new-found commitment to the United Nations Declaration on the Rights of Indigenous Peoples, that prior to further entrenching private property rights for Canadian citizens we first acknowledge the problematic nature of the failure to adequately address the first nations' land claims with negotiated cash settlements, and instead recognize their legitimate calls for land back.

Allow me to conclude in the same spirit in which we began this debate around Bill C-222, with a reminder that Parliament is on Algonquin Anishinabe territory, which is subject to an ongoing land claim process. If we are to have any newly introduced legislation around property rights, let us begin there.

[Alex Ruff, Conservative, Bruce—Grey—Owen Sound, ON]

Madam Speaker, it is my privilege today to speak to Bill C-222, a private member's bill by the member for Renfrew—Nipissing—Pembroke, an area that I know very well from my multiple years in Petawawa during my time in the military.

As previous speakers have highlighted, Canada does not have an inherent constitutional protection for private property. It is only done through the Expropriation Act at the federal level.

I fully acknowledge, as a former member of the Canadian Armed Forces and having served on bases in Gagetown and even having Meaford in my riding, that there are unique circumstances where expropriation is necessary. However, at all times, we need to pay fair market compensation to those owners. In my view, this bill simply does that. It intends to provide some clarity and protection for private property owners.

I am sure that my riding of Bruce—Grey—Owen Sound is very similar to a lot of rural ridings across Canada, where constituents have been living on some properties and farms held through generations. Unfortunately in some cases, these properties are the only things of substantial value, both personally and financially, for these Canadians. They are some of the most hard-working, honest and proud Canadians our nation produces. I have personally met many of them since deciding to get involved in federal politics. They have lots of concerns, and not just at the federal level but at all levels of government, with having their private property appropriately protected. It is really all they have.

That consistent message that I keep hearing from them, time and time again, is one of anxiety, concern and a lack of trust in governments. When their way of living is solely based on their property, whether it is farming or running a small business, it seems that every year there are more regulations, regardless of the level of government bringing them in and constantly challenging or limiting their way of making a living. In my view, in these circumstances, it is very easy to understand why these private property owners are frustrated.

Why is providing some level of clarity and certainty to these private property owners a bad thing? I know that previous speakers on this who may not be supporting this bill have noted the inadequate protection, and also that in some provinces there may be protection under either civil or common law. As well, they were asking for specific examples of where the bill may be appropriate.

I do not have a specific example, but I can mention some very similar situations. To go back to a previous speaker in the first hour of debate in November, the member for Red Deer—Mountain View said that we are seeing a “disturbing trend in Canada toward what is referred to as regulatory, de facto or constructive taking of private property.”

This happens when governments use those statutory powers to regulate or restrict the property rights of an owner without acquiring the title to the land that is being adversely affected. The landowner feels the impact of these regulations as if the land had been expropriated. Put another way, the government can strictly regulate the land, and limit its value and what a landowner can do with it, without triggering procedures in the legislation.

Let us go to specific examples in my riding where a comparison could be made. In one case I have a farmer whose land has not been expropriated yet, but who has been restricted in what he is allowed to do on his family farm due to its proximity to the watershed. There has been no history or circumstances where that farming operation has ever interfered with the watershed. There has been no run-off or problems historically.

The farmer accepted that. He had no problem and accepted that they had to change their way of doing business. However, when they then tried to utilize or take the private property and use it for a different business endeavour that would not compromise the environment or have any environmental concerns, they were informed that they could not do that either because the farm was agricultural land.

Again, it is the issue of the lack of certainty and clarity that private property owners are looking for because, again, what they can do to make a living and get by has been restricted by these regulatory changes. As such, these de facto or regulatory takings of property mean that the property owners are not entitled to compensation.

I know that one of the previous speakers indicated there is another method where they could raise this through a lower court at the provincial level. However, what this bill does is it just provides a little greater clarity.

One of the previous speakers this evening spoke about the requirement that a government, especially at the federal level, may be required to talk about defence, public safety and climate emergencies, and not hindering the government's ability for expropriation and cutting back the need for due process.

At the same time, that speaker indicated there has not been an example in the last 30 years where this has actually occurred. To counter that, my question is, if this has never actually occurred in an emergency, why are we worrying about it? Putting in the extra level of clarity and due process that Bill C-222 asks for is a good thing.

I admit that, as with any piece of legislation, this bill has room for improvement. All members of the House can support this bill and let it go to committee where those amendments could make this bill better and adequately protect the rights of our private property owners.

In my view, this bill is simple. It seeks to remove the uncertainty from the existing legislation by allowing due process to be followed. Private property owners should not be forced to give up their land without notice, without hearing and without fair compensation. Canadians deserve clarity, certainty and fair compensation. Bill C-222 would help achieve this.

[Monique Pauzé, Bloc, Repentigny, QC]

Madam Speaker, introducing legislation is an important step in the life of a member of Parliament. I want to recognize the member for her work, but I have to say that the Bloc Québécois will not be supporting Bill C-222 because we are in a climate crisis, because it threatens diversity and because the destruction of natural environments causes flooding. What we should be talking about today is the climate commitment that is needed.

We are debating Bill C-222 today. The member for Renfrew—Nipissing—Pembroke has introduced a bill that reflects an ideology involving climate change denial. In our view, the bill is somewhat out of touch with reality. It seeks to eliminate any potential expropriation, even if reality and environmental emergencies were to require it.

This is an attempt to deny reality. Climate change is having geographic repercussions on populated areas. In these circumstances, this bill aims to eliminate the flexibility of the current legislation when it comes to acting in cases of emergency.

The appropriation phenomenon is legally guided by the federal and provincial governments. Not only would Bill C-222 undermine Quebec's civil law, but it would also put the private good above the common good. What is worse, it denies the existence of climate-related disasters. I will not repeat the examples that were given at first reading and that my colleague from Avignon—La Mitis—Matane—Matapédia also raised earlier today regarding the people of Sainte-Marthe-sur-le-Lac and Rigaud, Quebec. Obviously, some properties were built on flood planes and they will flood again in the coming years.

Let us look at the facts. A study by Nature Communications projects that rising sea levels will threaten the homes of over 300 million people in the next 30 years. Quebec and Canada will be no exception, like it or not.

How can we deliberately turn a blind eye to the common good when action must be taken to protect the population or because of a climate or environmental emergency?

In passing, I want to speak out against something that a Conservative member said at first reading, when he went so far as compare the ability to take action under extraordinary circumstances related to environmental protection and climate change to 20th-century communism. It is rather unbelievable to hear that sort of thing in the House.

Although the right to property is not enshrined in the Canadian Constitution as it is in the United States, it is in no way compromised, inadequately protected, weakened or challenged, as Bill C-222 suggested. Whether it is the Civil Code of Quebec or the common law tradition in force in the provinces, expropriation takes place in accordance with the level of jurisdiction. In Quebec, the right to property is clearly enshrined in the Charter of Human Rights and Freedoms and in section 147 of the Quebec Civil Code.

Preventing the government from categorizing a situation as urgent and ordering an expropriation related to environmental protection or climate change is incomprehensible in this day and age. A balance must be struck between individual rights and the protection of citizens and the common good because there must be protection for both the public interest and the people.

In this vast country, could our geographic reality be any different? Let us consider that. If we were experiencing more tsunamis, if cliffs were crumbling, if landslides were burying homes and creating climate refugees, would Bill C-222 have been introduced in the House? Simply put, this bill suggests that climate change cannot cause disasters that justify an urgent response. We have to be clear about what we mean by “urgent”.

I urge some members of the official opposition to take a closer look at the work of experts who have been documenting the coastal risks associated with climate disturbances for decades.

Will they keep up that rhetoric when the residents of the Pacific coast and the Atlantic coast are experiencing serious consequences? We oppose the bill not out of any desire to please environmentalists, as some have suggested, but rather because we recognize the climate reality that has been rigorously documented by scientists around the world.

Lastly, I would like to add my voice to that of my colleague and really emphasize that when it comes to possible disguised expropriations and claims related to a trade agreement, the Expropriation Act deals only with the acquisition of property by the state and has nothing to do with environmental regulations. In CUSMA, or NAFTA 2.0 as it is sometimes called, the chapter that would have allowed an American investor to sue the government no longer exists.

In closing, I would like to ask the following questions: How is removing climate-related elements from the special circumstances category in the Expropriation Act an act of modernization? How is denying scientific discoveries an act of modernization? How is creating a conflict between property owners and the federal government on the issue of expropriation in the event of an environmental emergency an act of modernization?

The Bloc Québécois works to defend the interests of Quebeckers, our areas of jurisdiction and the robustness of our legislation. We will always work to protect our own.

The day when the Pacific and Atlantic coastal regions suffer the geographic and meteorological impacts of climate change, the public will be happy and reassured to have government help. Will they have federal representatives to look after them? I hope so.

[Cheryl Gallant, Conservative, Renfrew—Nipissing—Pembroke, ON]

Madam Speaker, first of all, I would like to thank the members of Parliament who have participated in the debate on Bill C-222. Property rights are important to Canadians. Home ownership and property rights go hand in hand. One needs look no further than the recent surge in home ownership since the start of the pandemic to see that owning property is a priority for average Canadians.

In Canada, real estate transactions are up over the previous year. There is a record high demand and short supply. For 2020 as a whole, over half a million homes traded hands over the Canadian multiple listing service systems, which is a new annual record. Home ownership remains a goal for a great many Canadians. Buying a home will be the single largest purchase many will make in their lifetimes. Property rights protect their investment.

There has been a disturbing trend in Canada toward what is referred to as regulatory or constructive taking of property. This happens when a government uses its statutory powers to regulate or restrict the property rights of an owner without acquiring the title to the land being adversely affected. The ownership of private property is not constitutionally protected in Canada. The Crown can take private land, either an entire parcel, an estate or interest in a parcel, such as an easement, for the public good. This is called expropriation.

It is a general principle of expropriation law that the Crown must compensate landowners when it takes their land, although, in reality, this does not always occur. While the act provides some procedural protections for private landowners during the expropriation process, they are not absolute. In particular, the government can shorten the 90-day notice period alerting landowners to the Crown's intention to expropriate, dispense with the requirement for a public hearing into objections raised by landowners and take physical possession of the land before an offer of compensation is offered.

To do so, the government must believe that the land is urgently required due to special circumstances. The act does not explain what is meant by urgent or special circumstances, so Bill C-222 would clarify that restoring natural habitat and addressing the consequences of climate variability do not constitute those special circumstances. Bill C-222 recognizes that expropriation may be desired for these purposes, but that due process must be followed. Private landowners should not be forced to give up their land without at least a 90-day notice, a public hearing if they object to the expropriation and an offer of compensation.

Since I introduced Bill C-222, I have been made aware of too many examples of individuals being mistreated when it came to property rights. Long-time property rights activist, Ontario turkey farmer David Core, has been involved in private property rights for years, having been the president of the Canadian Association of Energy and Pipeline Landowner Associations. He recently made this observation in the Pipeline Observer, “I began to see that a healthy respect for property rights was the missing link — the real key to securing personal liberty, economic prosperity and environmental protection for all Canadians.”

Nobel Prize-winning economist Friedrich Hayek once said that the power a multi-millionaire might have over an individual and their property, whether they are a neighbour or an employer, is very much less than what is held by the smallest government bureaucrat or agent, who wields coercive power of the state, and upon whose discretion it depends whether and how one is able to live, work or make decisions.

With this legislation, my goal is to protect the private property rights of average Canadians. Climate change is not the subject of this amendment to the Expropriation Act. In fact, this legislation has the effect of recognizing climate change. This bill in no way inhibits the federal government from responding to a climate emergency. What it would do is provide legal recourse for private property owners who are adversely affected by any such actions.

I ask members to please support property rights and send Bill C-222 to committee for further study.

[The Assistant Deputy Speaker (Mrs. Alexandra Mendès), Liberal, Alexandra Mendes]

The question is on the motion.

If a member of a recognized party present in the House wishes to request a recorded division or that the motion be adopted on division, I invite them to rise and indicate it to the Chair.

[Cheryl Gallant, Conservative, Renfrew—Nipissing—Pembroke, ON]

Madam Speaker, I would like to have a recorded division.

[The Assistant Deputy Speaker (Mrs. Alexandra Mendès), Liberal, Alexandra Mendes]

Pursuant to order made on Monday, January 25, the division stands deferred until Wednesday, February 17, at the expiry of the time provided for Oral Questions.