Expropriation in Canada: Discretion Masquerading as Law

Elizabeth Brubaker, Executive Director, Environment Probe

When Niccolò Machiavelli advised his Prince to “abstain from taking the property of others,” he warned that “pretexts for confiscation are never wanting, and he who begins to live by rapine will always find some reason for taking what is not his.” The Princes of today have strayed far from his advice, with the predicted results. The slimmest of pretexts – a big box store, a cinema, a parking lot – now excuses many a taking of private property.

Although expropriation – the taking of private property without the consent of the owner – is one of the most extreme uses of government power, Canadian governments have almost complete discretion over when they resort to it. Governments often justify this violation of their citizens’ common-law property rights as being necessary to carry out public purposes. But concepts so nebulous as necessity and public purpose provide no protection for landowners. Expropriations that serve private rather than public interests, and those that are unnecessary, have become commonplace. Expropriation is used as a convenient tool to reduce property acquisition costs for favoured industries. Legislation leaves citizens with little recourse against arbitrary, unfair, and unjustified expropriations.

This study provides an overview of the considerable rights and very limited restraints that federal, provincial, and territorial laws confer on expropriating authorities. It examines the forums that give landowners only an illusion of meaningful participation in the expropriation process. It looks at a number of disputed expropriations, and at how the courts have grappled with them. And it suggests reforms to better balance the needs of government with the property rights of landowners.

Read the full study here.

7 thoughts on “Expropriation in Canada: Discretion Masquerading as Law

    • If you look at the very recent decision of the Supreme Court of Canada upholding, for the first time, the concept of Aboriginal Title to land, you will see that this was widely applauded by the media as adding a lot of certainty in this area of law, for the first time. What everyone seems to have missed is a large qualification in that decision: aboriginal title can be trumped by government if it does so for an important public purpose.

      So, here we go again: what is a sufficiently important public purpose? How does such a vague standard create certainty? And who can decide what is more important, if not the courts? That means more litigation, with no certainty about outcome.

      There cannot be any certainty about how anyone can judge the relative importance to an aboriginal community of 400 people, of hunting and fishing in a huge area versus allowing a pipeline to cross that area and deliver oil to millions of non-aboriginals in major Canadian or US cities. This requires the exercise of discretion, of course, but in accordance with what principle?

      Now there are two abstract questions to decide, not merely one. First, is it for a “public” purpose? Second, if so, is the public purpose sufficiently important as to justify infringement of aboriginal title?

      The SCC did not really solve the basis of the problem. They just punted the ball down the field for future judges to try to deal with it.

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