Elizabeth Brubaker, Executive Director, Environment Probe
Presentation to Institute for Liberal Studies Seminar
Toronto, Ontario, March 8, 2014
The title of my talk – Expropriation: Inescapably Necessary, or a Convenient Tool? – refers to a 1968 report from Ontario’s Royal Commission Inquiry into Civil Rights. The Ontario government had established the Commission four years earlier. It had appointed James McRuer (formerly the Chief Justice of Ontario’s High Court) as Commissioner. McRuer’s mandate was to examine provincial laws and regulations affecting the personal freedoms, rights, and liberties of Ontarians. He would determine whether there were “unjustified encroachments” on those fundamental rights. And he would recommend legal changes to safeguard them.
One of McRuer’s targets was expropriation. McRuer defined expropriation as “a statutory power to take land without the consent of the owner.” He didn’t address other forms of expropriation – the de-facto takings that result from land-use regulations, or even, some would argue, from taxation. This morning, I’m going to stick with his definition – the taking of land without the consent of the owner.
Expropriation was rampant back in the 1960s. McRuer referred to the “promiscuous manner” in which the power had been conferred – he said it had been conferred “with reckless and unnecessary liberality.” He counted 8,017 expropriating authorities in the province. The list included the usual suspects – municipalities, public utility commissions, the minister of highways, and the like. It also included more surprising authorities – agricultural societies, the cancer foundation, cemetery owners, conservation authorities, private power companies, public libraries, school boards, even the stock yards board.
McRuer recognized that all expropriation is problematic. He believed that “the mere existence of the power to expropriate property is in itself an encroachment on the rights of an individual.” And yet, he also believed that expropriation was at times necessary. He didn’t recommend banning expropriation, but he did recommend limiting its use. And it’s from this recommendation that I pulled the title of today’s talk. Here’s what he said:
It cannot be too strongly emphasized that the Legislature should not confer the power of expropriation on any body or person unless it is clear that the power is inescapably necessary in the interest of good government and that adequate controls over its exercise are provided…. Powers of expropriation constitute far too great an infringement on civil rights to be handed out as convenient tools.
“Inescapably necessary in the interest of good government.” If you’re going to allow governments to expropriate, that’s a pretty good standard to hold them to. But unfortunately, it’s never been enacted. At least, not in Ontario. And nowhere else in Canada, either.
McRuer’s Royal Commission report didn’t just sit on a shelf. After it came out, Ontario revamped its expropriation law. It put many new procedures in place. But not one of those procedures does the most important thing – not one ensures that expropriation happens only when inescapably necessary in the interest of good government.
It’s hard to believe, but McRuer’s report was more or less the last word on expropriation in Ontario. It’s been 46 years since that report came out, and there hasn’t been a major debate about expropriation since then. A couple of other provinces produced reports in the early 1970s. There was a federal Law Reform Commission report in 1976. There have been outcries about specific expropriations – but not about expropriation as public policy. Almost no Canadian NGOs are working on the issue. And very few Canadian academics work on it – I can count them on one hand.
This silence is extraordinary. Expropriation is one of the most extreme uses of government power. The Supreme Court of Canada has called it “one of the ultimate exercises of governmental authority … [and] a severe loss and a very significant interference with a citizen’s private property rights.” But governments aren’t using this extraordinary power sparingly – they’re using it with abandon. Expropriation has become what McRuer warned against – a convenient tool.
I think it’s high time to revisit this issue. We need a full-fledged, high-profile policy debate. We should be asking: What are the rights of ownership? What are the proper limits on government power? When is expropriation justified? What policies and procedures are needed to protect individual rights?
This morning, I’m not going to tackle those questions head on. Instead, I want to get at them indirectly, by looking at some actual expropriations. I want to look at how today’s expropriations measure up to the standard that McRuer suggested back in 1968. Are current expropriations “inescapably necessary”? Or are there feasible alternatives? Are current expropriations “in the interest of good government”? Or do they pave the way for sketchy projects, or for projects that serve private interests?
I want to start with the expropriation of Frank Meyers’s farm. I’m going to spend quite a bit of time on this example, in part because it’s current, in part because it highlights a number of key issues, and in part because it’s very controversial. It’s by far the most controversial expropriation of the last decade. I must admit, I’m a bit surprised by the controversy. In some ways, this expropriation is as good as it gets in Canada – at least it’s for a public purpose. And yet, the story is deeply troubling to many people, including me. It brings to light the problems inherent in even the “best” expropriations.
Frank and Marjorie Meyers live on prime farmland in Quinte West, about two hours east of Toronto. Frank is 85 years old. He has farmed this land his entire life. The land was granted to one of his ancestors more than 200 years ago.
In 2006, the Department of National Defence decided that it wanted Frank’s land – and that of his neighbours – in order to expand the Canadian Forces Base at Trenton. It would use the land to build a new headquarters and training facility for an elite special forces unit called Joint Task Force 2, or JTF-2. DND was able to buy most of the land it wanted. But three affected landowners – including Meyers – refused to sell. And so, in 2012, the federal government announced that it would be expropriating their land.
Frank Meyers filed an objection to the proposed expropriation. This triggered a public hearing – not a formal trial with a judge, but an hour-long hearing in front of a federally appointed “hearings officer.” At the hearing, Meyers and his children made emotional pleas to save the family legacy. Meyers’s lawyer was more technical. He argued that DND didn’t require all of the land it had its eye on in order to meet its objectives. It had assembled about 700 acres from other owners – that was almost four times more land than JTF-2 was then located on. Did DND really need 200 acres from Meyers, too?, he asked. Couldn’t it settle for less?
The hearings officer listened, and duly reported what she had heard. The government considered her report, but wasn’t swayed by it. The government maintained that Meyers’s land was “absolutely essential for the safety and security of Canada.” It went ahead with the expropriation.
This is par for the course in expropriations. Hearings provide the illusion of consultation, but they don’t carry any weight. One journalist calls the hearing process “the ultimate exercise in ‘smoke and mirrors.’” A municipal lawyer calls it “a bit of a sham process.” He says that he has “never seen an expropriating authority decide not to expropriate based on the hearing.”
The government took possession of Meyers’s land in August 2012. It took 220 acres, leaving him with his house, but not his farm. It let Meyers harvest crops on the land for another year. That agreement expired last fall. The government put up “No Trespassing” signs and, at one point, hired a security guard to keep people off the land.
For most, that would have been the end of the story. But in fact, things began to get really interesting. Meyers refused to give up. “Why does the government have the right to take away our land?,” he protested. He’d worked hard all his life, and he’d done nothing wrong. He wasn’t going to go without a fight. And sure enough, six months later, he’s still fighting.
This fight is not about compensation. It’s not that Meyers is unhappy with the price. To him, the land is priceless. “You can’t put a price on heritage and emotional value,” he’s explained. “I don’t want their money,” he’s said. “All I want is the land back.” “What is a man my age going to do with a million dollars, or $5 million for that matter? All the money in the world means nothing to me without the family land.”
Indeed, this expropriation calls attention to the enormous human costs that simply can’t be compensated when some properties are taken. Frank Meyer’s son, John, explains, “It is really difficult knowing that everything we’ve worked for our whole lives, and generations before us, is now gone.” A neighbour whose land was also taken puts it this way: “Our world has been crushed.” How can money make up for that? It can’t.
In October, a woman named Lisa Gibson read an article about Meyers on the Maclean’s website. She didn’t know Meyers, but she knew this expropriation was wrong. She set up a facebook page called Save Frank & Marjorie Meyers Farm. The page attracted a huge amount of attention. It now has more than 55,000 “likes.”
Lisa Gibson also started an on-site protest. The protesters, with their banners and barrel fires, have helped keep the issue alive in the media. In fact, “alive” is an understatement – I’ve seen 34 articles in the last two months alone. There have been stories in the Globe, the Star, the Sun, and of course all over the local press. CBC has covered it, along with Global and CTV. Even Aljazeera ran a story. Meyers’s plight has also inspired a number of petitions, one of which was signed by more than 24,000 people.
Meyers has attracted the support of some strange bedfellows. The Libertarian Party of Canada put out a statement opposing expropriation and upholding land ownership as “a fundamental human right.” I’d expect that. On the other hand, I wouldn’t expect Occupy Canada to defend property rights. But it’s on side too. And so is at least one NDP MP.
There are passionate objections to the expropriation, but there is also some very determined support. There has been an endless battle of opinions on media web sites – one CBC story in January got more than 800 comments. I think it’s worth spending some time looking at those warring opinions. They provide a very interesting glimpse into the way ordinary people think about expropriation. I’ll start with the opinions of those who oppose the expropriation. And then I’ll move on to the opinions of those who support it.
Of course, people who oppose the expropriation do so for many reasons. I’ve tried to sort out their concerns – to bring some kind of order to the chaos of opposition. Some people aren’t opposed to expropriation per se, but object to this particular expropriation. Many worry about the loss of prime farmland. Others feel special compassion for an elderly victim. One typical remark is: “You don’t kick an 85 year old man off his heritage property. You don’t.”
A lot of people who aren’t categorically opposed to expropriation condemn the government in this case for failing to pursue alternatives. Some suggest alternative methods of expanding CFB Trenton – adjusting the size or shape of the site to bypass the farm, or expanding the base in a different direction. Many others suggest alternatives to expanding that particular base. “Canada is a big place. Find another piece of property” is a common theme in this debate. There’s no shortage of specific suggestions. DND should use Crown land, some say. Others insist DND should use a different base – perhaps one that has been mothballed. Others point out that if DND insists on using land that’s in private hands, it could at least find land that is for sale. Here’s a sample comment: “DND could build a new training and admin campus anywhere. Surely they could find landowners somewhere who are willing to sell to the gov’t for this purpose. But why bother when some faceless bureaucrats can just expropriate the land over the objections of the family that has owned it for 225 years?”
All of these comments speak to the standard recommended by McRuer in 1968. These people are saying that this expropriation is not inescapably necessary. There are alternatives. Expropriation is being used as a convenient tool. This strikes a lot of people as unjust. In the words of one man, “you might ‘accept’ expropriation, but I sure as hell don’t – not without a damn good reason. Expansion of a military base during peace time? Not. A. Good. Enough. Reason!”
Others are opposed to all expropriation. To some, the concept just doesn’t make sense. You can feel the bewilderment in a comment like “I’m sorry, but it’s his land that his family owns and paid for, not the Government’s.” Others don’t believe expropriation is a proper role for government. They protest that government’s job is to protect citizens and their property. According to one man, “Our governments … have walked away from the original purpose of Government…. Democratic Government was created ‘to protect and enhance the lives of all peoples.’ Period. That’s no longer the case.”
Many express concerns about the power of politicians, and the powerlessness of individuals. In the words of a local filmmaker, “It’s scary, when you think of it, just how little power we have when something like this comes up.” Or, as one journalist wrote, “It’s David vs. Goliath, but Goliath always wins.”
There’s a good deal of cynicism about government’s use of power. One woman says, “The Government is not here to protect us, but to take from us.” Another says, “I feel so bad but really what can you do once the government wants something? I feel we have no rights any more.” I could repeat dozens of similar comments. One example: “Governments have come to believe that democracy belongs to them.” Or: “The people we elect seem to think that it is their right to do anything they want after elected.” Or: “I am tired of my Canada being squandered, raped, bullied, pilfered, by politicians.” Or: “Tyranny plain and simple.”
That’s strong stuff, coming from Canadians! But it’s only the tip of the iceberg. Some compare the government to a bully. Others use images of theft. In one person’s words, “Expropriation is legislated theft or even armed robbery of private property!” (That comment reminds me of a 1908 court decision: “The Legislature within its jurisdiction can do everything that is not naturally impossible, and is restrained by no rule human or divine….The prohibition ‘thou shalt not steal’ has no legal force upon a sovereign body.” That’s a deeply troubling thought.)
One of the issues that comes up frequently in this debate is the absence of strong property rights in Canada. Many people bemoan their exclusion from the Charter. Some maintain that property ownership is a mere “illusion,” since governments can take property at will. “We never really own a damn thing in this country,” complains one person. Others take the argument further, maintaining that Canadians merely “rent” their property from the government. One man developed the analogy like this: “Don’t you understand, you don’t own your property anyhow. You simply rent from the Government. The payments are called Property Taxes. Just try not paying your rent and see what happens. Expropriation is just a termination of your rental agreement.”
One other big issue surfaces regularly in this debate: Some opponents suggest that expropriation is corrupt, in that it’s done for political gain. “Just crass politics,” one says. And another: “This is nothing more than a political move by Harper to keep seats in Ontario.” There may be some truth in that. This expropriation is promoted as a job creator – an engine of local economic development. DND won’t say exactly how many people will be transferred to the new facility. Most estimates are about 600 military personnel and their families. As many as 700 civilian jobs could also be created. That could translate into a lot of votes.
Expropriation for economic development strikes some as profoundly wrong. “Jobs? Since when should expropriation be used as a job creator?,” one man asks. “If a buck can be made, you can be thrown under the bus,” another complained. And another: “Once again, it all boils down to the almighty dollar. Shame on you Quinte West!”
Alas, this is not the only position on economic development. There is enormous political and popular support for expropriating to create jobs. Indeed, economic development is the federal government’s most powerful sales pitch. A spokesperson for the Minister of Defence argues that “This project will inject millions of dollars into the local economy and bring hundreds of well-paying jobs.”
The MP for the area makes the same arguments. He compares the benefits of the development to having an automobile assembly plant locate in his jurisdiction. He lauds the “exponential economic implication” of the new jobs. Personally, he says, he wanted to finish the expropriation faster. After all, “you have to look at the greater good.” (That reminds me of a comment I read in one article: “Anytime a politician starts tossing about terms like the ‘greater good’ you just know some unsuspecting individual is about to get the short end of the stick.”)
Local politicians are equally enthusiastic. The mayor of Quinte West has been boosting the project for years – in fact, he went to Ottawa to lobby for it. He calls the project “a once in a lifetime opportunity.” His council has passed several unanimous resolutions in favour of expanding the base. Last month, one councillor explained that any community “would be frothing at the mouth to get an opportunity like this.” Other local governments are on side too. The mayor of Prince Edward County predicts the project “will be a boon for the entire region.” A county councillor likewise supports the move, explaining that “it’ll certainly help the real estate market.”
Not surprisingly, plenty of members of the public feel the same way. In their minds, economic development trumps property rights. The so-called public good is paramount. Here’s a typical comment: “1500 new jobs for the area versus one farm. No contest! I vote for the jobs!” And another: “Individual rights can never trump the needs and rights of all of society.”
So that’s the debate that’s now raging over the expropriation of the Meyers farm. Lisa Gibson says that the protest is “bringing mass awareness to what the government is capable of.” I think she’s right – this has a lot of people thinking about expropriation for the first time. And they’re learning some important lessons. They’re learning that the hearing process is a sham. They’re learning that alternatives to expropriation are not fully considered – projects that are not inescapably necessary still go ahead. They’re learning that financial compensation cannot make everyone whole – that very real human costs remain uncompensated.
People should also be learning that expropriation can happen to anyone – that no one is secure. As Lisa Gibson warns, “It’s not just Frank. It’s you, it’s me, it’s anyone in Canada. If this can happen to Frank, what’s to prevent it from happening to us?” A neighbour whose home was taken for the same project sounds a similar warning: “Be afraid. They can take your house. There is not one person with land who should not be scared.”
But I don’t want people to be scared – I want them to be mad! I want the people who are raging on social media to push for reforms to expropriation. Frank Meyers’s son, John, understands that his family’s plight has the potential to inspire change. Canada, he says, “is about rights and freedoms – the right to own property and the freedom to enjoy it to the fullest…. I hope issues like this get Canadians angry and get them to stand up for their rights because that is what it’s all about.”
Expropriation violates one of our most important rights – our property rights. Property rights may not be in the Charter, but they are, in the words of one Supreme Court justice, “fundamental in our democratic society.” They have been an essential principle of the common law for centuries. The same Supreme Court justice explains that because expropriation constitutes such a “drastic interference” with an individual’s right to property, because it’s such an “exorbitant power,” it cannot be undertaken lightly. No party can expropriate without being explicitly empowered to do so by federal or provincial legislation. Frank Meyers’s supporters should understand that if expropriation powers have been granted by legislation, they can be taken away by legislation. Those concerned about Frank Meyers’s plight should be insisting on legislative changes to curb expropriation abuse.
Now, you may remember that I said near the beginning of this talk that in some ways, the Meyers expropriation is as good as it gets in Canada – at least it’s for a public purpose. That’s more than you can say for some expropriations. In the worst cases, governments expropriate for the benefit of private interests – they force the transfer of property from one private party to another.
That’s now happening in Quebec, in Lac-Mégantic. July’s derailment and explosion destroyed the town centre. The town is relocating the centre, not to vacant land but to land that’s already developed. It’s forcing homeowners to make way for a grocery chain, a pharmacy, and other businesses. It has threatened to expropriate the lands of anyone who refuses to sell. Some of the owners are very bitter about losing their homes. “Big business is just taking care of itself and doesn’t seem to care about us,” one resident complained. “But they need to show us some respect and realize we aren’t just some insects they can shoo away.”
You can find another current example of expropriation for a private purpose in Nova Scotia. That province has expropriated part of a Christmas tree farm in order to accommodate an Australian gold mining conglomerate. The province wanted the economic development a mine could bring. As the Natural Resources Minister explained, “Nova Scotians will see the benefits through taxes, royalties, and good paying jobs.”
The expropriated land was owned by the Higgins, and had been in the family for more than 120 years. The Higgins refused to sell – even for $300,000. They asked the company, which will be developing an open-pit mine, to work around their land instead of taking it. But the company balked, and the province backed the company. As Cleve Higgins warned, “This sets a dangerous precedent. It says to Nova Scotia landowners that a mining company can just come along and take away your land because it wants to.”
The lower courts supported the province’s decision to transfer ownership from the Christmas tree farmers to the mining company. The Higgins had hoped to take their case to the Supreme Court of Canada. But just last week the Court dismissed their application for leave to appeal.
The most outrageous example of expropriation for private purposes is not current. But I can’t resist mentioning it. You know the Cineplex on the northeast corner of Yonge and Dundas? That hideously ugly mall with all those signs? Six properties were expropriated for that development. The city took the land, and turned it over to private developers. The project was completed six years ago, but the protests of the owners still haunt me. Here’s one: “It is difficult for me to control my anger and frustration at the thought of being robbed of my life’s work to benefit … a special interest group or groups seeking their own economic advantages.” Expropriation for a movie theatre! What was Toronto thinking? That’s about as far as you can get from McRuer’s standard. Inescapably necessary in the interest of good government? Absolutely not.
Unfortunately, the examples I’ve been giving you are not all that rare. Here in Ontario, there have been many expropriations for private purposes. Windsor expropriated a block of historic buildings for an office tower that houses Daimler-Chrysler. St. Thomas expropriated homes for a parking garage for a private residential and commercial development. Oxford County expropriated for a Toyota assembly plant. And it gets worse: New Brunswick actually allows any private party to apply for expropriation for commercial, industrial, or utility purposes. This has got to change. If we’re going to allow expropriation, at least we should limit its use to genuine public purposes.
Some of my current research involves how to define “public purpose.” I’ve been looking to the US for guidance and inspiration. Back in 2005, the US Supreme Court issued a decision in a case called Kelo v. City of New London. New London wanted to expropriate 15 homes, and to use the land for office space, parking, and retail. The landowners objected that this was not a public use, as required in the US Constitution. But the court decided that economic development would indeed serve a public purpose – it would create jobs and increase tax revenues.
The Kelo decision was one of the most unpopular decisions the Supreme Court has ever issued. It ignited a veritable firestorm of opposition to expropriation. Citizens figured that if they couldn’t count on federal protections, they would seek protection at the state level. They lobbied their state legislators. They introduced ballot initiatives. They went to court.
The results have been extraordinary – 44 state legislatures and many state high courts have restricted expropriation. A number of states now specifically prohibit the use of expropriation for economic development. Michigan’s Constitution Act specifies that “‘public use’ does not include the taking of private property for transfer to a private entity for the purpose of economic development or enhancement of tax revenue.” Virginia’s Constitution likewise spells out that a taking “is not for public use if the primary use is for private gain, private benefit, private enterprise, increasing jobs, increasing tax revenue, or economic development, except for the elimination of a public nuisance existing on the property. The condemnor bears the burden of proving that the use is public, without a presumption that it is.” Adopting similar rules here in Canada would be a great first step in curbing expropriation abuse.
But a stronger public use requirement would only be a start. We also have to ensure that expropriations are “inescapably necessary,” and that they are “in the interest of good government.” I’ve talked about the “inescapably necessary” part – that means there aren’t feasible alternatives to expropriation.
But what about the “good government” part? Good government demands that projects that rely on expropriation be both environmentally and economically viable. As an environmentalist, I initially became concerned about expropriation because it was so bad for the environment. Expropriation made possible many of our worst megaprojects. The developers of hydrodams, pipelines, and sprawl-inducing highways have always relied on expropriation. Massive water diversion projects could never go ahead without expropriation.
The economic costs of expropriation can also be enormous. Expropriation amounts to a subsidy. It allows developers to acquire land at below-market prices. By hiding the true costs of a project, it distorts decisions about which projects make economic sense and which don’t. Rampant expropriation also has an insidious effect on the economy by undermining investors’ confidence that their property will be secure. This discourages investment. This is not “good government.”
Expropriation is legitimate only for sound, solid projects that are likely to go ahead. Many expropriations are premature – they occur before governments know whether they will even go ahead, or how they will finance them. In Alberta, the Regional Municipality of Wood Buffalo is expropriating several properties in Fort McMurray to make way for a sports and entertainment centre. After a public hearing last year, the inquiry officer concluded that necessary studies had not yet been conducted, and that “there is no reasonable assurance that the project will ever proceed.” But his report didn’t deter the municipality. Again, this is not “good government.” Edmonton is expropriating more than a dozen properties in order to expand an LRT line, even though the proposed project is short $515 million. Yet again, not “good government.”
I hope I have persuaded you this morning that our expropriation processes require a thorough overhaul. We need to curtail who expropriates, and for what purposes. I think we can learn a lot by looking at recent reforms south of the border. But I think we can also learn from looking at our own history – specifically, by revisiting Justice McRuer’s 1968 report. We should, at long last, adopt the standard he put forward: “inescapably necessary in the interest of good government.” I believe the change he proposed then is even more urgently needed today.