| Jun 23, 2005


Feature article, June 16, 2005

Feature article June 16, 2005

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Whose land is it anyway? Part 3

by Jeff Green

There are legislated limits to the private use of property from all levels of government. Are they all justifiable? When does the common good legitimately overstep privately held property rights when it comes to land?

In this, the last article in the series, we will look at property rights in the municipal context, and finally at a proposal to change the definition of property rights in Canada.

Property Rights and Municipal Bylaws

Some limitations to individuals enjoyment of their property are obvious and easy to justify.

From time to time local municipalities decide to put on burn bans. There is a procedure that is followed in these cases, with information provided to local fire chiefs from the Ministry of Natural Resources. No landowner can seriously make the argument that they should be able to start a fire on their own land because they have property rights and burn bans should only apply on common lands. Fires spread, so my right to burn brush on my land puts other land and people at risk. There is little doubt my rights are rightly limited in this case.

Other cases arent so simple, however.

There is a current case in front of South Frontenac Council where a building on a waterfront lot was renovated.

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The lot in question was an existing lot, but it is much smaller than what would be required today under a comprehensive zoning bylaw the township adopted several years ago. Similarly, the building on the lot is located closer to the shoreline than would be allowed for new construction.

Once changes are made to a building, however, the new, stringent comprehensive zoning bylaw takes effect.

In this case the landowner renovated his building without seeking a permit. He built on the same footings of the existing building, putting in a second story, and turning a 1,000 square foot seasonal residence into a potential year-round 1500 square foot house. He is now before Council seeking a variance from the comprehensive zoning bylaw. The property owner says there will be no change in the use of the building, and no damage to the shoreline from the change.

Council must consider whether runoff into the water will increase from the higher roof line, whether shoreline erosion will be increased, and whether a proper septic system can be put in place for a larger potential occupancy on such a small lot, etc.

Council must also consider the question of precedent. If the comprehensive zoning bylaw is overridden in this case, what of the next case?

Whatever South Frontenac Council decides in this particular case, no one would seriously argue they shouldnt have the authority to place limitations on this landowners right to build on his property.

There is a growing frustration, however, with the number of regulations that are in place, and the number and cost of permits required before any building can take place.

Lets take a murkier case, also from South Frontenac. The township has decided to enforce bylaws that have existed for many years prohibiting recreational trailers on private lots within its boundaries.

In this case, it is not the environmental impact on neighbouring land or water quality from trailers that is of concern. Any such impacts could be addressed through regulation.

The problem is that people with trailers pay only vacant land tax to municipalities and are thus seen as being subsidised by homeowners, who pay a higher share for municipal services.

The second, underlying concern, is that trailers and mobile homes (which are also prohibited on private property in South Frontenac) bring down the property values of their neighbours.

I recently talked to a waterfront landowner who commented about a $300,000 property that is for sale on his lake. He said that a potential buyer of that property would be less likely to make an offer if they had to drive by a property with a trailer before reaching that high-end waterfront property.

Here we have a case where one persons enjoyment of their property, the right to put up whatever safe, legal structure they prefer to use, impinges on someone elses enjoyment, the right to enjoy maximum profit from selling their property.

The move to enhance property rights

Included in the Canadian Bill of Rights is the right to the enjoyment of property. Clause 1 of the Bill of Rights specifies the right of the individual to life, liberty, and enjoyment of property, and the right not to be deprived thereof except by due process of law.

Lanark Frontenac Lennox and Addington MP Scott Reid is not satisfied with this definition because it does not confer to property owners any rights to use their property. Reid has proposed to amend the Bill of Rights, changing clause 1 to the following: (amendments in bold) the right of the individual to life, liberty, security of the person and enjoyment and use of property, and the right not to be deprived thereof except by due process of law, and, in the case of property, without full, just and timely compensation.

This proposal is meant to put the use of land into the Bill of Rights, and to force governments to provide compensation if ownership rights are curtailed for any reason.

In describing his motivation for proposing this amendment, Scott Reid makes reference to the recently enacted Species at Risk Act, through which land use can be legally curtailed if an at risk species is reported on the land.

Reid argues that this is a practical matter. He thinks that a farmer or a land developer who becomes aware of a species at risk on their land, would be more likely to ignore the at risk species or even eliminate it, if they are facing uncompensated loss of land use by reporting it. If, by virtue of the Bill of Rights, compensation is stipulated, Reid thinks more landowners will report at risk species and the Act would thus be more effective.

Helen Forsey, an activist and researcher from Ompah, has written critically about Scott Reids proposed amendment to the Canadian Bill of Rights, saying in a recent article that the amendment could further erode the fragile basis we retain for environmental regulation. According to Forsey, the addition of the word use to the Bill of Rights could strengthen arguments in favour of converting a warehouse into a mega-hog barn or draining a wetland to build condominiums.

However, it is the compensation clause that Forsey sees as particularly dangerous. Forsey writes that compensation has been part of our common law for centuries, but she says that under Reids amendment, a property owner could claim compensation for practically any restriction on current or future property use. This would put at risk limits on urban sprawl or factory farming, laws to protect endangered species or prevent erosion or pollution

Contrary to the opinion expressed by Helen Forsey, researcher Elizabeth Brubaker has made the argument that strengthening property rights would actually be good for the environment. She published a book called Property Rights in Defence of Nature in 1995.

The book argues that the actions of governments, specifically the Ontario government, have both harmed the environment and trampled on the common law rights of landowners at the same time.

She mentions, for example, a case from the 1950s. A pulp mill on the Spanish river was granted leave by the Ontario government to continue polluting the river in the interest of maintaining jobs, overturning court rulings ordering them to change their practices because the property rights of landowners downstream were being impinged upon.

Brubaker argues that the perception that governments act as protectors of the environment while private interests often put profit before environmental protection is false. She points to private initiatives such as land trusts, conservancy covenants and the like and says they bring more environmental benefits that government initiatives such as land designations like Areas of Natural or Scientific Interest.

On terms of compensation, Brubaker says the environment is not at risk, because no property owner who pollutes can claim compensation if they are forced to stop the activity that is causing the pollution. The right to pollute has never existed, so forcing change to practices, even if it stops an existing land use, would never require paying compensation to a land owner.

While Brubaker does make a good case for how activities sponsored or supported by the Ontario and Federal governments have led to environmental devastation and have supported industry over individual property owners in the past, it is generally departments such as industry, natural resources, and mining that were involved. Strengthening property rights in relation to the activities of the Ministry of the Environment or Conservation Authorities could have a different effect, however.

The arguments Elizabeth Brubaker has made in books and articles over the years concur with some of the positions taken by the Lanark Landowners Association. (LLA).

The LLA is dedicated to what they call a rural revolution, advocating for the entrenchment of property rights in the Canadian Constitution so their slogan back off government, get off my land can come to full fruition. LLA President Randy Hillier shares Elizabeth Brubakers confidence that property owners will protect the environment, we have maintained our land for five generations and a recent study by the government confirms that the water quality in Eastern Ontario is excellent, Hillier said in a speech this winter.

Ironically, Elizabeth Brubaker is one of four principal members of the Energy Probe Foundation, a group whose general manager is Lawrence Solomon. Solomon has written articles in the National Post about rural Ontario that claim urban dwellers subsidise the living standards of people living in rural and remote areas and should not continue to do so. Rural and remote was defined a region that is more than one hours drive from a centre with a population in excess of 250,000 people (in a recent government sponsored report).

Through his writing, Solomon has had the curious effect of uniting both the right and left in rural Ontario, including both Randy Hillier and Helen Forsey, in bitter opposition to him.

Thats all for now.

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