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

This bill was previously introduced in the 43rd Parliament, 1st Session.

Sponsor

Cheryl Gallant  Conservative

Introduced as a private member’s bill. (These don’t often become law.)

Status

Defeated, as of Feb. 17, 2021

Subscribe to a feed (what's a feed?) of speeches and votes in the House related to Bill C-222.

Summary

This is from the published bill. The Library of Parliament often publishes better independent summaries.

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.

Elsewhere

All sorts of information on this bill is available at LEGISinfo, provided by the Library of Parliament. You can also read the full text of the bill.

Votes

Feb. 17, 2021 Failed 2nd reading of Bill C-222, An Act to amend the Expropriation Act (protection of private property)

The House resumed from February 16 consideration of the motion that Bill C-222, An Act to amend the Expropriation Act (protection of private property), be read the second time and referred to a committee.

Expropriation ActPrivate Members' Business

February 16th, 2021 / 6:35 p.m.
See context

Conservative

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.

Expropriation ActPrivate Members' Business

February 16th, 2021 / 6:25 p.m.
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Bloc

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.

Expropriation ActPrivate Members' Business

February 16th, 2021 / 6:20 p.m.
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Conservative

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.

Expropriation ActPrivate Members' Business

February 16th, 2021 / 6:10 p.m.
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NDP

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.

Expropriation ActPrivate Members' Business

February 16th, 2021 / 6 p.m.
See context

Bloc

Kristina Michaud Bloc Avignon—La Mitis—Matane—Matapédia, QC

Madam Speaker, I thank the member for Renfrew—Nipissing—Pembroke for introducing this bill. I know that it is an extremely rewarding experience since I recently introduced a private member's bill myself. I thank her and commend her for her work.

I want to begin by indicating where the Bloc Québécois stands on this bill on expropriation. I must say that it is a very unusual bill. Unfortunately, the Bloc Québécois will be voting against Bill C-222, and I will explain why.

Contrary to what is being proposed, Bill C-222 is not a way to protect owners from arbitrary and abusive expropriation. In reality, all it seems to do is deny the fact that climate change can lead to disasters that require emergency action. In some cases, that unfortunately may require expropriation. I say unfortunately because expropriation is always a loss for those whose property is being expropriated, even if such action is justified.

Section 11 of the current Expropriation Act states that the government has the authority to carry out rapid expropriation when urgently required under certain special circumstances. If Bill C-222 passes, the government will never be able to categorize an expropriation as urgent if its purpose is to restore historical natural habitats or address, directly or indirectly, climate variability. As we all know, climate change affects natural phenomena. Climate change has caused, is causing and will cause disasters.

The spring floods we used to get every 100 years are happening more and more often. These floods have become more sudden and severe and require more and more urgent intervention. Last December in Gaspé, the Matane river flow was recorded at over 300 cubic metres per second, which is almost 10 times its average annual flow.

Laval University researchers studied the effects of climate change on floods caused by ice jams. They found that damage could increase by 30% on average because of climate change.

My riding in the Lower St. Lawrence has two rivers. Over the next 50 years, flood damage could increase by 50% along the Matane river and by 75% along the Matapédia river. That is not only cause for concern, it is a fact we need to consider when discussion the topic of expropriation.

Many people will never forget the spring of 2019 in Sainte-Marthe-sur-le-Lac, a municipality in the Lower Laurentians built largely in a flood zone and protected by a dike. The dike, which was poorly adapted to the high volume of flood waters in the context of climate change, collapsed and the municipality was flooded by the icy waters of the Lake of Two Mountains. A third of the municipality, in other words 6,000 people, were under emergency evacuation orders. Some 800 houses were flooded. We heard the testimonies of desperate residents who, in some cases, lost everything. The Quebec government had to act quickly, in just a few months, to raise and reinforce the dike to prevent this tragedy from happening again the following year. This operation involved encroaching on certain private properties and probably decreased the value of several waterfront homes by obstructing their view of the lake. The matter is currently before the courts to determine the amount of compensation to which the shoreline residents are entitled.

I mention all of this to highlight the fact that, if the provisions of Bill C-222 had been incorporated into Quebec law at the time, local residents could have prevented the Quebec government from taking action to avoid losing parcels of land or losing their views. By doing so, they would have put the entire municipality at risk of another flood.

Expropriation for the common good is nothing new. It can be found in the Old Testament, ancient Greece, Roman law. It was born out of the necessity to create major public works for the good of all. Even in societies that recognize and protect private property, it is legitimate for the public interest to give way when required by public utility or general interest.

However, the current Expropriation Act allows for objections to expropriation. The property owner can object to the expropriation within 30 days of receiving the expropriation notice. The government appoints a hearing officer, who will hold a public hearing at which the owner will present the reasons why they believe that the expropriation is not justified or illegal. The owner in question can then argue that the reason why the government wishes to expropriate has nothing to do with the public interest or that the expropriation notice does not comply with the law. The hearing officer submits a report to the government, which can amend the notice, abandon the expropriation or simply ignore the officer's opinion. We can see that the process for objecting to the expropriation is more symbolic than real, because the government can unilaterally reject the owner's arguments. We can also see that this objection process ends up delaying the expropriation.

Subsection 10(11) of the current Expropriation Act allows the government to skip the appointment of a hearing officer and a public hearing if it is of the opinion that the expropriation is, by reason of special circumstances, urgently required and that to order a public hearing would occasion delay prejudicial to the public interest.

However, the bill before us this evening, Bill C-222, adds a paragraph stating that subsection 10(11) “does not apply if the interest or right...is intended to be expropriated by the Crown for the purpose of restoring historical natural habitats”, as I was saying earlier, “or addressing, directly or indirectly, climate variability”.

This addition would prevent the government from categorizing an expropriation as urgent if it is related to environmental protection or climate change. In a way, this bill is saying that climate change cannot cause disasters requiring an urgent response, such as expropriation or even partial expropriation.

If Bill C-222 is adopted, the people affected will have the luxury of objecting to an emergency measure related to climate change that affects the value of their property, which will limit the government's ability to deal with it. The Bloc Québécois cannot abide by the government being limited to that extent in dealing with climate disasters. That is why we will not support Bill C-222.

Let us not forget that the Expropriation Act is essentially procedural legislation. It determines the procedures the government must take when it proceeds with an expropriation, the deadlines it must respect and the recourse the expropriated has in the case of an objection. Under the Expropriation Act, a person who is the subject of the expropriation has two rights. They can challenge the amount of compensation or they can challenge the expropriation itself.

Last February, when she introduced her bill, the hon. member for Renfrew—Nipissing—Pembroke issued a press release to explain the scope of the bill. On reading the bill, we saw a few discrepancies with her explanations, which is rather unusual.

First, Bill C-222 was explained in such a way as to suggest that expanding environmental regulations were tantamount to disguised expropriations. To the hon. member, the protection of private property is compromised by this trend, which would justify the bill. With all due respect, I tend to disagree.

Public authorities do pass regulations that prevent a landowner from enjoying or disposing of private property as they wish. For example, when a municipality that passes a by-law preventing the construction of buildings on a flood plain for environmental reasons, it is considered an indirect or disguised expropriation. The owner can then turn to the courts to be compensated for the loss of the asset.

However, the proceedings do not stem from the Expropriation Act but from Quebec's Civil Code or, if the owner lives in English Canada, from common law. It is not covered by the Expropriation Act or by Bill C-222. That is why we wonder about the real reason behind the tabling of this bill.

The member also said that her bill would give Canadian property owners the same rights that foreign investors are afforded under NAFTA. I am referring to the investor's right to oppose environmental regulations that diminish the value of their investments. My colleague may have missed the fact that the Expropriation Act deals only with the expropriation of property by the state. It has nothing to do with environmental regulations.

I also remind members that the chapter of NAFTA that allowed an American investor to sue the government when an act or regulation diminished the value of their investment does not exist in the new agreement, CUSMA.

Lastly, the member said that, because the Canadian Charter of Rights and Freedoms does not protect property rights, these rights are covered by the Expropriation Act. However, private property is protected by the Civil Code, not federal legislation. Section 92.13 of the Constitution states that property rights are a provincial jurisdiction. The Expropriation Act does not protect private property. Rather, it stipulates how the government must proceed for any expropriations of property.

Bill C-222, which would amend the existing Expropriation Act, will not protect private property and will only prevent the government from dealing with climate-related emergencies. Climate change is exacerbating the natural phenomena that pose a danger to the health and safety of Canadians and Quebeckers, so the Bloc Québécois cannot agree with restricting the government's ability to deal with environmental disasters.

Expropriation ActPrivate Members' Business

February 16th, 2021 / 5:50 p.m.
See context

Gatineau Québec

Liberal

Steven MacKinnon LiberalParliamentary Secretary to the Minister of Public Services and Procurement

Mr. Speaker, I salute you and thank all the staff, especially the interpreters, for continuing to serve us so well.

I am pleased to take part in today's debate on BillC-222, an act to amend the Expropriation Act. The member for Renfrew—Nipissing—Pembroke tabled this bill, apparently with the goal of promoting the protection of Canadians' private property. The member stated that her intention with this bill was to “remove some uncertainty from the existing legislation as to whether owners can be compensated” and “protect the private property rights of average Canadians” in the event of federal expropriation.

However, the amendments proposed in Bill C-222 do nothing to protect private property. They only result in the uneven application of key legislation and restrict the government's ability to act in the interests of Canadians in certain emergency situations. Consequently, this is a deeply flawed bill for several important reasons that I will explain in the next few minutes.

At the heart of this debate is the issue of expropriation, a rare occurrence indeed, driven by urgent need that takes place only if and when a negotiated process is not feasible.

Although rarely used, expropriation can play a critical role in dealing with emergencies or incidents in areas such as defence, transportation and the environment.

In its current form, the Expropriation Act is an important piece of legislation that details the process the Government of Canada is required to follow when private property must be expropriated to serve the public interest. Under this process, a public hearing must be held if there is an objection to a notice of expropriation.

As it stands, the act contains provisions so that in an emergency, when a delay would be prejudicial to the public interest, the Minister of Public Services and Procurement may step in and set aside certain requirements. As an example, the minister is permitted, in the case of an emergency, to waive the holding of a public hearing to allow the government to move more quickly to expropriate a crucial piece of land or property.

This exemption applies exclusively to pressing cases in which emergency measures are necessary. It could have to do with the urgent need to acquire material or a good, including to ensure the protection of essential transportation infrastructure, or with national security.

The government is cautious and uses due diligence in every aspect of the expropriation process. Nonetheless, the need to act quickly, especially in emergencies, can be a determining factor in the process. If the proposed changes were made to this legislation, it would not be possible to speed up the expropriation process in a pressing manner in case of an emergency.

Having flexibility in the expropriation process is potentially critical to dealing with emergencies when timelines are paramount. We simply cannot accept amendments that hinder the government's ability to act quickly in the interests of Canadians when faced with defence, transportation or environmental emergencies.

Bill C-222 proposes to amend the Expropriation Act to limit the power to exercise the right under subsection 10(11) to forego a public hearing before registering the notice of intention to expropriate lands. It also seeks to limit the power provided for under subsection 19(2) to substitute a period lesser than the waiting period for taking material possession of land or the immovable real right.

However, the hon. member's bill seeks to impose these limits only in specific cases. More specifically, the bill states that subsections 10(11) and 19(2) would not apply in cases where the purpose of expropriation is for “restoring historical natural habitats or addressing, directly or indirectly, climate variability”. Ultimately, these changes create a two-tier system by retaining certain factors, but setting others aside.

When deemed necessary, our government believes all expropriations are deserving of equal treatment regardless of their purpose, whether it is environmental protection or accommodation for public infrastructure. It is counterproductive to establish a tiered system by creating exceptions limiting the minister's ability to act swiftly in cases of real environmental emergencies over others. It just does not make sense.

The government is firmly committed to defending the private property rights of Canadians. We recognize the importance of protecting private property rights by ensuring that the regular procedure is followed pursuant to the existing Expropriation Act, which sets out the rigorous hearing process that must precede any planned expropriation.

Currently, the act allows the minister to waive holding a public hearing if, by reason of special circumstances, the physical possession or use by the Crown is

urgently required and that to order that a public hearing be conducted with respect to it would occasion a delay prejudicial to the public interest

I will now indicate how often a hearing has been waived.

In reality, there has never been an accelerated process where the minister had to use the provisions under the subsections in question of the current act. However, these are important provisions to have if they were required. The member did not provide any compelling argument that would justify curtailing the minister's powers in this manner, and only in certain situations.

It would seem that the only thing the bill and its amendments would truly achieve is to apply new impediments to the Government of Canada's ability to respond to emergency situations and, again, only in certain circumstances. Putting aside those emergency provisions, the Expropriation Act already ensures that property owners are treated fairly and compensated appropriately in situations where expropriation is considered necessary.

The act also clearly indicates how the market value must be determined and paid. I want to point out that Public Services and Procurement Canada has completed just 12 expropriations in the past 30 years. In these cases, the government abided by the act and ensured that property owners were treated fairly and were offered appropriate compensation. There has never been a situation, under the current Expropriation Act, in which the government has waived public hearings related to a proposed expropriation of property for any reason whatsoever.

Bill C-222 is essentially an ineffective solution to a non-existent problem. Simply put, this bill is unnecessary, and Canadians have nothing to gain from it. Expropriation is rare. I repeat that Public Services and Procurement Canada has completed approximately 12 expropriations in the past 30 years, and there has never been a situation, under the current Expropriation Act, in which the government has waived public hearings related to a proposed expropriation of property.

Frankly, our position is that expropriations deemed necessary deserve equal treatment, regardless of their purpose, whether it is environmental protection or accommodation for public infrastructure.

Nevertheless, the bill, as introduced, would simply undermine the government's ability to act in emergencies and provides no added benefit for property owners.

For all of the reasons stated above, our government does not support this bill, and I urge my colleagues to reject it.

The House resumed from November 17, 2020, consideration of the motion that Bill C-222, An Act to amend the Expropriation Act (protection of private property), be read the second time and referred to a committee.

Expropriation ActPrivate Members' Business

November 17th, 2020 / 6:05 p.m.
See context

Conservative

Earl Dreeshen Conservative Red Deer—Mountain View, AB

Madam Speaker, if the last speaker were to come to Alberta and Saskatchewan, there would be an opportunity for him to look at the great work being done there to combat greenhouse gases and all the other things that are happening within the industry. That would be helpful. Perhaps then the rhetoric would be a bit more logical.

My family fled oppression in the disputed area of Schleswig-Holstein, Germany, in 1870 to come to America, a land healing after having just gone through a devastating civil war. Because of issues arising from one of the Oklahoma riots, two of the sons ventured north to Canada's Northwest Territories to farm in what was eventually to become Alberta. As members can imagine, the issue of property rights and freedom runs deep in my family.

Other pioneers in our central Alberta community arrived from the far reaches of the world. Many of these new neighbours were from war-torn communist countries and cherished the fact that once and for all they could breathe freely, knowing their hard work and commitment to their family and community would be respected and that their ownership of property would be honoured.

Each of us, all 338 members of Parliament, need to remember the dedication and sacrifice that those who came before us showed and endured. Sadly, there are still some situations where governments have extraordinary powers that are easily abused. This is why I am so honoured to speak to Bill C-222, an act to amend the Expropriation Act regarding the protection of private property. I want to congratulate the hon. member for Renfrew—Nipissing—Pembroke for bringing this important legislation forward. I know she is also a passionate advocate for the defence of property rights in Canada.

We play several roles as elected members. I cannot think of many functions that are more important than working to safeguard the property rights of our constituents. Property rights form one of the most important cornerstones of our society and our economy. There are some among us who like to equate the notion of rights with individual liberties or freedoms to do whatever we want. Property rights are not only paramount as part of our tradition, but are essentially the foundation for all other rights as well.

We often like to equate the notion of free speech with the ability to say whatever we want, which is true to an extent, but as we know there are limits to this axiom. The possibility of severe harm because of hateful views is but one example. This right to free speech does not apply when we are trespassing on someone else's property. There must remain a fundamental degree of respect for the owner of that property. We have seen situations like that in the past. In the same vein, the right to freely associate is not the right to associate anywhere we want to. We do not have the right to freely associate on private property. We can do so in a public space or a space we own. The bottom line is that there are generally no such individual rights or liberties beyond the property rights that a person may have.

This is why I say that property rights are so vital. It is certainly one reason why standing up for the property rights of our constituents is such an important part of our job.

In my riding of Red Deer—Mountain View, we know about the value of property and the importance of property rights. Many of my constituents are farmers or ranchers. They put food on the table for their own families, as well as for millions of families across Canada and around the globe. In many cases, they grew up on a farm, as did I. They know the value of a hard day’s work. They understand the importance of taking care of what they own, of living frugally and responsibly, or of saving hard-earned money to make a down payment on a house, a new farm building or to expand a herd or the size of their farming operation.

The same is true for our local business people. They work hard for years so that they can save enough money to expand their business, look for new clients, hire more workers to keep their business growing and hopefully have something left for their family in retirement.

As elected members, we must stand up for and proudly say that we will help protect the property and the property rights of our constituents. This is why the bill that we are addressing here today has such significance.

We have always heard that property rights are not protected under Canada's Charter of Rights and Freedoms. This is different from other countries, such as the U.S. where property rights are constitutionally protected. Under the Fifth Amendment of the American Constitution, no private property may be taken for public use without just compensation and without the due process of law.

In contrast, what we are seeing here in Canada is a disturbing trend towards what is referred to “regulatory”, “de facto” or “constructive” taking of private property. This happens when governments use their statutory powers to regulate or restrict the property rights of an owner without acquiring title to the land as being adversely affected. The landowner feels the impact of the regulations as if the land had been expropriated. Put another way, the government can strictly regulate land, limiting its value and what a landowner can do with it, without triggering procedures in the legislation.

A “de facto” or “regulatory” taking means that a property owner is normally not entitled to compensation. What is worse is that we see many examples in jurisdictions across Canada where the government has actually misled the owner and the public about the intended use of a property in order to circumvent the need to pay a landowner compensation, choosing to follow the regulatory taking route rather than following the rules under federal or provincial expropriation laws.

If a government changes the designation of a property to avoid compensation under expropriation statutes and then subsequently redefines the designation for future use, this avoiding of higher compensation is an abuse of power. Bill C-222 seeks to remedy this type of situation and remove uncertainty from the existing legislation as to whether owners must be compensated for certain types of takings.

The goal is to protect private property by ensuring that governments follow the rules of due process. Bill C-222 seeks to remove uncertainty from the existing legislation as to whether owners must be compensated for certain types of so-called regulatory takings.

As I mentioned at the beginning of my remarks, one of the most important functions that we perform as elected members of this place is to protect the property rights of our constituents. I know that I want to leave a legacy for future Canadians where property rights are protected. We have come too far as a free and caring nation. We have been the beacon of hope for immigrants from all over the globe. We must continue to ensure that property rights are treated honourably.

Bill C-222 would take us one step further in working to protect the property rights of our constituents by ensuring that the government follows the rules of due process when it comes to expropriating land. I therefore encourage all hon. members to support its speedy passage.

Expropriation ActPrivate Members' Business

November 17th, 2020 / 5:55 p.m.
See context

NDP

Peter Julian NDP New Westminster—Burnaby, BC

Madam Speaker, I rise to speak to Bill C-222. In the summary of the document for the bill, it states:

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.

Further on in the bill, the Expropriation Act cites two examples of where that right to waive the requirement for the public hearing may not be exercised. It is in “restoring historical natural habitats or addressing, directly or indirectly, climate variability.” That, in essence, is the bill before us this evening.

I have enormous respect for the member for Renfrew—Nipissing—Pembroke. I disagree with her vehemently on many issues, but I certainly respect her hard work in the House of Commons. She is one of the deans of the Conservative caucus. That being said, I will not be supporting this bill.

I am going to cite the two reasons given in the Expropriation Act for why there should be an inability for the Governor in Council to waive the public hearing requirement. The first, as I mentioned earlier, is the restoring of historical natural habitats.

The origin of this is of course the devastating floods that took place in 2017 and 2019 in Renfrew County. I think all of our sympathies and thoughts are with the many people in that region who suffered losses during that time. Hundreds of homes were damaged and many were destroyed. The 2017 and 2019 floods were absolutely devastating for the region.

That is why this legislation purports to waive the Governor in Council's ability to override public consultations. When we look at the reasons behind the flooding, often cited as a result of IJC actions, we can actually see that there is a difference between what is promoted by the bill and what actually happened on the ground.

Doug McNeil wrote an independent review of the 2019 flood events in Ontario. This was commissioned by a Conservative government. A Conservative member of course would agree with the recommendations and the conclusions in that regard.

Doug McNeil said, “some believe that the International Joint Commission’s (IJC) operation...has a negative impact on...Ottawa River flooding.” He goes on to cite in the report that was filed with the Conservative government that the IJC actions had absolutely no bearing on flows of the Ottawa River. There are indeed, though, things that had an impact on those devastating floods. They are cited in the report as climate change and impacts of a changing climate. Those are cited repeatedly in McNeil's reports.

The first item that is cited in the Expropriation Act simply does not hold water, if members can excuse a pun in that sense. The reality is that the IJG, very clearly from the report of the Conservative government, did not have an impact of the devastating floods that impacted so many people in Renfrew County and in other areas.

There is a second item that is cited in the bill and that is climate variability. Climate variability, as members are well aware, is not the same as the climate change crisis and the climate emergency that the House has already ruled on and that we are currently in. I will come back to that in just a second.

The member, who I respect but who disagree with vehemently, has stated in reports that she has actually filed with her local riding that there are alarmist claims about man-made global warming. These are scientific facts about the impacts of climate change and the impacts of the climate emergency. The good people of Renfrew County are not immune from the climate emergency we are seeing around the planet.

As I cited earlier, we saw two devastating floods that impacted hundreds of homes and hundreds of homeowners in the area around Renfrew County in 2017 and 2019.

In British Columbia, in two of the last four summer seasons, we have literally not seen the sky. The impact of forest fires due to climate change completely shrouded the Lower Mainland of British Columbia. When I was a child, I can remember incredibly blue skies throughout the summer in the Lower Mainland of B.C. This has been impacted by climate change. The reality is that climate change has not just had an impact on the quality of life for the people of Renfrew County or the people of British Columbia. We have seen the devastating impacts of climate change around the world. These are undeniable. We cannot talk about climate variability. We cannot make, as the member has said, alarmist claims about man-made global warming. The climate emergency is upon us. People around the world are living with it, and people around the world are saying that governments need to step up now to stop the climate emergency. They need to step up and make the transition to clean energy.

The impacts of two of the last four flood seasons in Renfrew County are very similar to impacts of two of the last four summers on the Lower Mainland of British Columbia. Many other regions of Canada can cite similar impacts. This summer we saw the western United States ablaze. The impact of that smoke was even felt in southern British Columbia. The many forest fires that were ravaging the western United States, because of the impacts of climate change, blew that smoke right into the Salish Sea, the Lower Mainland and southern Vancouver Island as well.

We know that those impacts are being felt. We know that the economic impacts are also being increasingly felt. The cost to the Canadian economy this year will be $5 billion. We know that amount is going to increase each and every year. Within a couple of decades, projections say that the cost to the Canadian economy from climate change will be $50 billion a year.

We have to take action. I would suggest it is not by adopting Bill C-222, which talks about climate variability, but it is actually by taking action to help people in Renfrew County and to help people across Canada and around the world. That means we have to stop the incredible support of $12 billion that is given to the oil and gas sector. Canada now is in a very sad race with Saudi Arabia, in terms of the egregious amount of support that is given to oil and gas CEOs, yet we have not seen any investments made for energy workers. I am part of the energy sector. I came out of the Shellburn Oil Refinery in Burnaby, British Columbia, so I have worked in the oil and gas sector. There have been no provisions made, either by the Conservative governments in Alberta and Saskatchewan or by the federal government, to actually transition energy workers from the fossil fuels that are helping to provoke climate change to clean energy that would help to address the climate emergency and bring down the egregious levels of greenhouse gas emissions we are seeing literally burning our planet.

Those are the actions, and that is the kind of bill, that I would certainly be willing to support. These would tackle the efforts that many people are undertaking around the world to address the climate emergency. That is what I would be prepared to support. That would be something that would address the concerns of the very good people of Renfrew County. I know the area well and I know they understand that there is a climate emergency and that our governments, both provincial and federal, have to take action. I will be voting against Bill C-222. I believe that we need to take action in the climate emergency, and I hope that we will see further private members' legislation that will actually address something that the government at the moment seems unwilling to address.

Expropriation ActPrivate Members' Business

November 17th, 2020 / 5:45 p.m.
See context

Bloc

Julie Vignola Bloc Beauport—Limoilou, QC

Madam Speaker, I rise this evening to speak on behalf of the Bloc Québécois about Bill C-222, which would amend the Expropriation Act.

The concept of expropriation is not new in the history of humankind, nor is it new to Canada. Expropriation has been used since ancient times and has led to the development of organized societies. In Quebec, the right to property is protected by section 6 of the Charter of Human Rights and Freedoms, which states:

6. Every person has a right to the peaceful enjoyment and free disposition of his property, except to the extent provided by law.

Quebec civil law has its roots in French law, which, since 1789, has recognized the right of the state to expropriate in the interests of the public, under certain circumstances.

This principle was later incorporated in the Napoleonic Code. It was then adopted by the Civil Code of Lower Canada and then taken up in article 952 of the Quebec civil code.

Canada's first expropriation law dates back to 1886. It was followed by the Expropriation Act of 1952, which was in force until 1970. This act did not contain any provisions for compensation and did not require the Governor in Council to provide reasons for the expropriation. This is unacceptable. It reeks of past imperialists imposing their views with no regard for anyone. This disregard for the public was rectified in 1985.

Expropriation is not a pleasant thing to go through or, I would imagine, to enforce. Mistakes were made in the past. For example, expropriations made to create Forillon National Park caused a great deal of suffering. Then there were the expropriations made to create the Mirabel airport, which also caused significant trauma.

Government of Quebec expropriations in the 1960s shut down villages in the Lower St. Lawrence and the Gaspé. My grandmother, Cécile Gagnon Vignola, worked for Operations Dignity to support the victims of these expropriations.

This is not about unfounded expropriations. It is specifically about expropriations caused by natural disasters or by the need to protect the environment, especially the most fragile areas. The bill before us today does not deal with compensation procedures, but rather with reasons that can be given for an emergency expropriation. Two sections would be amended in much the same way. Sections 10 and 19 have a subsection added to limit the Governor in Council's emergency expropriation powers. To my knowledge, these powers, although limited, have not been used in recent years.

These added subsections stipulate that the Governor in Council will no longer have the right to order emergency expropriations in the very specific case of restoration of former natural habitats or climate variability. In other words, the Governor in Council may make emergency expropriations except in cases involving the environment and climate change.

Accepting such changes would be as irresponsible as saying that the environment is not important, that climate change is not having an impact, or worse, that it does not exist. Some will argue that it is not up to the government to decide where people should move or resettle. In some cases, however, it is clear that government intervention is necessary. People, who are only human, sometimes cannot see past their personal interests and have no long-term vision, no intergenerational vision.

It is time to relearn how to take care of our environment, the place where we live, and to do so not only for ourselves, but also for the people who will live after us.

I have two examples that illustrate why this bill is unacceptable.

Because of record flooding in 2019, the Sainte-Marthe-sur-le-Lac dike collapsed, resulting in the emergency evacuation of 6,000 of the village's 18,000 residents. A total of 800 homes had to be evacuated. It is important to point out that the municipality is largely built in a flood zone and protected by the dike because, as humans, we think that we can stop the force of nature. It was necessary to act quickly to raise the height of the dike, limiting the view of the lake from some homes and thus decreasing their property value.

Had Bill C-222 existed in Quebec in 2019, the height of the dike could not have been raised. As a result, the municipality would have flooded year after year for the simple reason that some residents would prefer to have a view of the lake rather than be protected. That also means that, year after year, the homes of these residents would have flooded and the government would have had to take action to move them out of the flood zone, house them, compensate them and so forth. All these costs are paid out of taxpayers' money, so this is not just a problem for the owners. It is the entire population that has to pay more taxes to cover such costs.

Then there are insurance premiums that go up every time there is a natural disaster and not just for the people affected, but for the entire population too. Protection of private property, which is an important right, also has repercussions for the entire population. It is therefore important to allow the government the right to legislate or make emergency decisions in the interest of the entire population and not just in the interest of certain individuals.

What is more, in the 1960s, if we had tried to see beyond the end of our noses, no one would be living in a flood plain. This would have been banned from the start. Disasters like the one in Sainte-Marthe-sur-le-Lac or the big storm that went through the Lower St. Lawrence in December 2015, if I am not mistaken, where homes and garages were carried away by the river because they were built too close to the water, would not have happened. Building homes in those locations would have been prohibited.

Caring for our environment means caring for our food sources and for our economy in the long term. Looking beyond our immediate needs means thinking about future generations. The bill includes an indirect element that would allow the Governor in Council to decide that a person cannot build a house in a given location. That is indirect expropriation. It is important that we keep this possibility.

I am thinking of marshes in particular. When a builder sees a marsh, he fills it in, builds condos and thinks that everything is great. However, without an understanding of the geology and geomorphology of the area and the structure of marshes, we may not realize that marshy areas still sink even after being filled. Consequently, foundations crack, then owners turn to the city or the builder for compensation. Add to that the legal bills. Once again, the entire population pays.

Therefore, it is not just an environmental issue. It is also an issue of fairness for the entire population. We should not have to pay for the decisions made by one or two individuals who make personal choices.

Expropriation ActPrivate Members' Business

November 17th, 2020 / 5:30 p.m.
See context

Bloc

Sébastien Lemire Bloc Abitibi—Témiscamingue, QC

Madam Speaker, Bill C-222 is a rather odd bill. In our opinion, all it does is deny that climate change can lead to disasters that require emergency action.

Accordingly, if Bill C-222 is passed, the government could never invoke the emergency of the expropriation for the purposes of restoring a former natural habitat or the direct or indirect management and variability of the climate.

Expropriation comes from the Latin ex proprium, which means dispossess or deprive of property ownership. Unlike in the United States, the right to property is not enshrined in the Canadian Constitution, as the hon. member noted. However, in Quebec, that right is protected by law.

The Quebec Charter of Human Rights and Freedoms stipulates that, “Every person has a right to the peaceful enjoyment and free disposition of his property, except to the extent provided by law.” What is more, the civil code stipulates that, “No owner may be compelled to transfer his ownership except by expropriation according to law for public utility and in return for a just and prior indemnity.”

Does the hon. member understand the difference between the civil code that is applied in Quebec and common law?

Expropriation ActPrivate Members' Business

November 17th, 2020 / 5:15 p.m.
See context

Conservative

Cheryl Gallant Conservative Renfrew—Nipissing—Pembroke, ON

moved that Bill C-222, An Act to amend the Expropriation Act (protection of private property), be read the second time and referred to a committee.

Madam Speaker, as the member of Parliament for Renfrew—Nipissing—Pembroke, I am honoured to rise today to discuss my private member's bill, Bill C-222, an act to amend the Expropriation Act with respect to the protection of private property.

We acknowledge that Parliament is on Algonquin Anishinabe territory, which is subject to an ongoing land claim process.

I am pleased to recognize that the current movement to protect private property landowners' rights in Ontario started in my riding of Renfrew—Nipissing—Pembroke. I owe a debt of gratitude to the Renfrew County Private Landowners Association, the Renfrew Landowners Association, and the North Renfrew United Landowners chapters of the Ontario Landowners Association. I thank them for keeping me so well informed on issues of importance to landowners.

There has been a disturbing trend in Canada toward what is referred to as regulatory, de facto or constructive taking of private property. This happens when a government uses its statutory powers to regulate or restrict the property rights of an owner without acquiring the title of the land being adversely affected. The landowner feels the impact of the regulation as though the land had been expropriated.

In the United States, the fifth amendment of the American constitution protects private property rights. In Canada, a government acquisition of land without owners' consent is not subject to the Canadian Charter of Rights and Freedoms. Private property rights were excluded from the Canadian Constitution when it was repatriated in 1982.

Bill C-222 is concerned with expropriations under federal jurisdiction. At all levels, governments require the power to expropriate private land. Expropriation laws set out a clear step-by-step process to resolve conflicts between private real property rights and the public's need for that same land.

Peter Bowal and Rohan Somers, in “Expropriating Land: A Balancing Act”, wrote:

Governments [should] want to limit expropriations, and approach them carefully and sensitively so as not to be perceived as being unfair or abusive in any way.... [I]n the...majority of cases [that follow the common law], there are...collaborative...negotiations and offers on the part of the public authority behind the scenes in an expropriation. Accordingly, the strict formal steps in the process, including a public hearing, are rarely needed. By far, most expropriations...[are] satisfactory, [with] resolutions on both sides when they are negotiated in good faith in the shadow of the legislative framework.

I will quote Elizabeth Brubaker of Environment Probe, who wrote, “The courts’ long history of strictly construing statutes means that simple legislative changes — in particular, those more clearly defining public purpose — [are] effective in limiting governments’ discretion over expropriation.” Bill C-222 is such a proposal.

In Canada, landowners' rights are found in the expropriation legislation. The government must follow the law as to what land may be expropriated and must observe procedures set out in the legislation. In Canada, the government can strictly regulate land, limiting its value and what a landowner can and cannot do without triggering the procedures in the legislation. That is why it is time to modernize the Expropriation Act.

I introduced Bill C-222 to provide some protections from the government's taking of people's property without notice, a hearing or fair compensation. Private property is defined as property “...over which the owner has exclusive and absolute rights...”. Private property is different from public property. Public property is defined as “state- or community-owned property not restricted to any one individual's use or possession.”

The federal government has the authority to expropriate such property under the act, specifically provincial lands.

By explicitly limiting its scope to private property, the proposed exception in Bill C-222 would allow the federal government to expropriate public property, including provincial lands, for a public purpose that solely relates to the restoration of historical natural habitat or climate variability.

Concerns about climate change must not be used as a cover to confiscate value from private property. Agricultural producers in particular should not be required to subsidize someone else’s environmentalism without compensation. The same must be said for all private property owners.

It would appear that the recently signed Canada-U.S.-Mexico agreement on trade addresses the issues raised by my private member's bill, Bill C-222. As a result of signing this trade agreement, it would appear foreign investors in Canadian property are afforded more protection than Canadian owners of Canadian property.

The source of this incoherence is article 1110 of the North American Free Trade Agreement, NAFTA, which has been carried over into CUSMA under article 14.8 on expropriation and compensation. Article 14.8 in the new agreement provides:

1. No Party shall expropriate or nationalize a covered investment either directly or indirectly through measures equivalent to expropriation or nationalization (expropriation), except: (a) for a public purpose; (b) in a non-discriminatory manner; (c) on payment of prompt, adequate, and effective compensation in accordance with paragraphs 2, 3, and 4; and (d) in accordance with due process of law.

2. Compensation shall: (a) be paid without delay; (b) be equivalent to the fair market value of the expropriated investment immediately before the expropriation took place (the date of expropriation); (c) not reflect any change in value occurring because the intended expropriation had become known earlier; and (d) be fully realizable and freely transferable.

3. If the fair market value is denominated in a freely usable currency, the compensation paid shall be no less than the fair market value on the date of expropriation, plus interest at a commercially reasonable rate for that currency, accrued from the date of expropriation until the date of payment.

4. If the fair market value is denominated in a currency that is not freely usable, the compensation paid – converted into the currency of payment at the market rate of exchange prevailing on the date of payment – shall be no less than: (a) the fair market value on the date of expropriation, converted into a freely usable currency at the market rate of exchange prevailing on that date; plus (b) interest, at a commercially reasonable rate for that freely usable currency, accrued from the date of expropriation until the date of payment.

5. For greater certainty, whether an action or series of actions by a Party constitutes an expropriation shall be determined in accordance with paragraph 1 of this Article and Annex 14-B (Expropriation).

The language here was rolled over from the 1992 NAFTA and it refers to the indirect nationalizing or expropriating of a measure as being tantamount to nationalization or expropriation. The language clearly exists to ensure that compensation will be owed for both de jure and de facto expropriation by the expropriating country.

The scope of article 14.8 is indeed wide. “Measure” includes any law, regulation, procedure, requirement or practice, and the definition of “investment” is expansive. James Beaton, writing in Expropriation without Compensation, states, “Moreover, there is no allowance, as there is in Canadian common law, for express statutory language to extinguish the right of compensation.”

How the previous NAFTA article 1110 has been treated in arbitration among the parties of NAFTA, Canada, the United States and Mexico, has, or at least should have, bearing on expropriation law in Canada generally.

This is particularly so given NAFTA's, now CUSMA's, constitution-like status as a document that cannot be amended without the consent of all signatories. Expropriation in NAFTA, and now CUSMA, includes not only the open, deliberate and acknowledged takings of property but also the covert or incidental interference with the use of property that has the effect of depriving the owner, in whole or in significant part, of the use or reasonably to be expected economic benefit of the property.

With the ratification of CUSMA, where that leaves expropriation law and Canadian property rights in the future is uncertain. CUSMA is not the only international agreement signed by Canada where foreigners are afforded more private property protections than Canadians.

This is from the “Lake Ontario-St. Lawrence River Plan 2014: Protecting against extreme water levels, restoring wetlands and preparing for climate change”, which was signed by president-elect Joe Biden in 2016 when he was Obama’s VP and the current government:

The Lake Ontario-St. Lawrence River Study concluded that an estimated 25,000 privately owned riparian properties are located on Lake Ontario and the St. Lawrence River upstream of the Moses-Saunders Dam. More than 3,000 shoreline property parcels are located below elevation 76.2 m...and could be at risk of flooding on Lake Ontario and the upper St. Lawrence River.

...The restoration of more natural water level regimes in Lake Ontario and the St. Lawrence River is not a traditional wetland restoration project, which typically includes harvesting and planting, physical transformations of the wetlands, or cleanup of pollutants.

The federal government, in addition to being fully aware that plan 2014 was intended to flood residential properties, has obligations in accordance with the Boundary Waters Treaty of 1909, article VIII:

...interests on either side of the International Boundary which are injured by reason of the construction, maintenance and operation of the works shall be given suitable and adequate protection and indemnity in accordance with the laws in Canada or the Constitution and laws in the United States respectively....

While flood victims in the United States are being offered compensation for properties confiscated by flooding as a result of government policy, Canadian flood victims have yet to see any recognition of their losses. The time has clearly come to give equal, if not more, protections in the law to Canadians than what is now given to foreigners in Canada.

In a recent United Nations study, countries with stronger property rights were more economically advanced. It is time to modernize expropriation law in Canada to be consistent with international law.

In conclusion, the ownership of private property is not constitutionally protected in Canada. The Crown can take private land for the public good. It is a general principle of expropriation law that the Crown must compensate landowners when it takes their land. In reality, this does not always occur when the expropriation occurs outside a legislative framework.

Bill C-222 would clarify that restoring natural habitat and addressing the consequences of climate variability do not constitute special circumstances. Bill C-222 recognizes expropriation may be desired for these purposes, but that due process must be followed and private landowners should not be forced to give up their land without notice, without a hearing and without fair compensation. Flooded properties due to government policy should be treated like an expropriation. This would trigger the legal process for compensation contained in the Expropriation Act.

I welcome a vigorous discussion regarding Bill C-222.

October 21st, 2020 / 4:50 p.m.
See context

Liberal

The Chair Liberal Ginette Petitpas Taylor

No. Thank you so much for that. That's great.

Perhaps now we can proceed through each item. To be efficient with our time, we could maybe just go through them item by item, and if there are no questions or comments, we can dispose of them fairly quickly. We'll be able to address the ones for which there is debate.

Does that sound appropriate to everyone?

We'll start off, then, with Bill C-210. Does anyone have any issues or comments about that one? No.

Next is Bill C-238.

I see there are no comments, so we'll move right along to Bill C-224. Good.

Next is Bill C-215. No comments.

Next is Bill C-204, and now Bill C-229.

I'm not going to jinx it, but we're on a roll.

Now we have Bill C-218 and a motion, M-34.

Next we have Bill C-214, Bill C-220, Bill C-221, Bill C-222 and Bill C-213.

I love working with women.

Next is Bill C-223, followed by M-35.

Now we have Bill C-206, Bill C-216, Bill C-208, Bill C-205, Bill C-237, Bill C-225, Bill C-228, Bill C-236, Bill C-230 and Bill C-232.

Speaker's RulingCanada-United States-Mexico Agreement Implementation ActGovernment Orders

March 10th, 2020 / 12:45 p.m.
See context

Conservative

Cheryl Gallant Conservative Renfrew—Nipissing—Pembroke, ON

Mr. Speaker, what I support most is the fact that CUSMA justifies Bill C-222. In terms of anything the member just described, I would want to make sure that the property rights of Canadians are at least equal to what is being given to foreigners who own property in Canada.