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.