Alberta Land Bills

The term Alberta Land Bills refers to the four Alberta Land Bills passed by the current Alberta government. Each Bill is designed, in some fashion, to extinguish property rights and/or deny access to transparent processes and the courts. The Bills are commonly referred to as Bill 19, Bill 24, Bill 36, and Bill 50. The common theme to each of the Bills is that they concentrate power into the hands of Cabinet in Edmonton.

The Bills give Cabinet members powers that they have never had before, in a way that is without precedent in western democracies. The Bills remove the rights of landowners to compensation when their land is taken and strikes down the role of the courts in such matters.

Bill 19

Bill 19 is essentially a way for the government to work around the Expropriation Act. It gives Cabinet the power to freeze a person’s land for long periods of time—twenty, thirty, even forty years—and makes no requirement that the landowner be compensated. The freeze order is also served on the landowner’s bank, and from that day forward the landowner would not be able to do anything on his land apart from obtaining written permission from the Minister of Infrastructure. Prior to Bill 19, if the government wanted a person’s land for a highway, power dam, transmission line, or utility corridor, the land had to be expropriated. And under Expropriation Law, it was required that the landowner “be made whole.”

Bill 19 is designed to legally get around the Expropriation Act, so that the full rights of compensation that Albertans have traditionally held, and that other Canadians now hold, no longer applies in Alberta.

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What Does Freeze Your Land Mean?

In an attempt to quell opposition to Bill 19, the Alberta government sent out an information flyer that was designed to dismiss criticism of the Bill. Yet woven into the language of the pamphlet is the very reason landowners are concerned and should be concerned. For example, the document says that if a landowner wanted to build a shed or garage on his farm, that it would “probably” be allowed. Ask yourself what it means when the government says that it will “probably” let you build a garage on your own property.

The bottom line is that once your land is frozen under Bill 19, the government could prohibit you from doing anything on your land that might increase its value.

Another way to look at the impact of the Bill is to imagine a farmer who has a dairy barn and milks 60 cows. If he wanted to take that herd up to 100 cows, because one or more of his adult children wanted to get into the business as well, Bill 19 would prohibit it—and could do so for years, even decades.

At the same time, any equity financing from the bank would be out of the question. Section 10 of the Act says that after the land is frozen, and the bank notified, the bank is then liable regarding the Bill 19 order that had been issued by Cabinet. Financing will dry up for the landowner because no bank is going to lend money in such a situation.

Bill 36 - See also Bill 36 (Part 2) Proposed Amendments below

Bill 36 is the darkest horse of them all. Minister Ted Morton is the Bill’s architect, and the man who championed it through the legislature. It is a model for central planning. It gives the Cabinet Minister sitting in the secrecy of the cabinet room, complete authority to make any decisions affecting your existing rights. This means property rights, development rights, mining rights, forestry rights, mineral extraction rights, etc. Section 11 of the Act clearly indicates that the Cabinet can even “extinguish” these rights altogether.

The Act removes a landowner’s right to compensation. And several sections of the Act remove a landowner’s access to the courts as a response to what is being done to him or her. The thinking behind the Act is that the Cabinet will make a five-year plan, and in that plan they will describe what kinds of uses and activities are allowed and not allowed on all private land and public land in the province. The Act enables the cabinet to set “social, economic, and environmental policies” for all land in Alberta—including yours.

This is unprecedented legislation in a western democracy. It is not regional planning, but central planning, with power entirely held by a small group of politicians who would deny landowners access to the courts in response to what they would do to them.

Bill 36 Proposed Amendments

Bill 36 has resulted in a law called the Alberta Land Stewardship Act. It is a law that gives Cabinet the power to wipe out property rights in Alberta in a number of very specific areas. According to the government, the Bill was supposed to implement a regional planning strategy. Instead, it resulted in a law that tramples property rights and that was written in such a way that it even gave Cabinet—not the courts, but the politicians in Cabinet— the power to extinguish legal agreements and even extended to land titles. This new law also denies landowners access to the courts if and when they disagree with a decision made about their land by Cabinet. In other words, no appeal process. Plus compensation was restricted.

The public outcry against Bill 36 has been so intense that amendments were introduced this spring. Land titles are now exempt, but the amended Bill still gives Cabinet—not the courts, but the politicians in Cabinet—the power to arbitrarily and unilaterally rescind water licences, development rights, grazing leases, oil and gas mineral leases, timber harvest agreements—all these sorts of things. It also restricts landowners who feel they have been unfairly treated from access to the courts.

Bill 36 is unprecedented for a government in a western democracy. As of the writing of this document, we are not aware that any government in any genuine democracy has moved this much power into the Cabinet room. In essence, Bill 36, and the amendments to Bill 36, have been written in such a way that the politicians in Cabinet are above the law. The Bill means Cabinet is the law because no one will ever be able to challenge some of its decisions in a court of law.

The way the proposed amendments are written, decisions made by Cabinet about an Albertan’s private property are not reviewable by the courts, unless Cabinet specifically says they are. In Alberta law then, when Cabinet makes a planning decision about your land—on a broad range of issues—the starting point for you as a landowner is that there will be “no courts allowed unless Cabinet specifically says, ‘Okay, in this instance we’ll let the courts review our decision.’” It doesn’t matter how unfairly you feel the government has been toward you.

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Bill 50

Bill 50 is really an economic Bill with property rights overtones. Transmission power lines in Alberta, as in most places, are paid for by power users. They are built on a cost plus basis, meaning the company that builds them owns them and gets a guaranteed return on investment. As a result, there is always an incentive for the builders and owners of these lines to overbuild. As a result, most every jurisdiction in the developed world has established the equivalent of a utilities commission. In Alberta, it is called the Alberta Utilities Commission.

Each of these commissions are designed to conduct a public and transparent “needs assessment,” carried out by an expert panel, prior to approving new construction or expansion. Its job is decide if there really is a public need, or if building a new power line is a “want” on the part of a company.

What Bill 50 does is take the decision making process as to whether or not new power corridors are even needed, away from the experts at the Utilities Commission, and moves it into the hands of Cabinet in the closed window environment of a backroom.

As a result, these same cabinet ministers who have given themselves sweeping powers under Bill 36 and Bill 19, now decide whether Albertans need new multi-billion dollar power lines. The result has been that they have approved $16 billion worth of new transmission line construction.

In response, the province’s major industries have gone public, saying that this is a massive overbuild. This is not a group of environmentalists saying this. These are the big power consumers in the province who want and need electricity. They have gone so far as to send a letter to every member of the government, urging them not to go ahead with this. They even indicate that if this major overbuild goes ahead, some companies will have no choice but to relocate outside the province because the net effect will be to triple power rates.

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Bill 24

Bill 24 is a Bill the government passed in order to move ahead with its $2 billion Carbon Capture Program. Recognizing that it would have to pump CO2 underground into the pore space (as in the pores or gaps that are located in underground formations), it had to ask the question, “Who owns that space?”

It is evident in law that the pore space is owned by the surface owner, because at law, the surface owner owns from the surface of the land to the centre of the earth, except those things that are reserved from the title, namely mines and minerals which are usually held in the name of the Queen, although there is some private ownership of mineral rights in the province.

Clay, marl, and the underground formations belong to the surface owner, including the pore space and the gaps in underground rock formations.

What Bill 24 does is to unilaterally take ownership of the pore space away from those who own it and give it to the government. The Bill essentially says that the government of Alberta declares itself to be the owner of the pore space on all property in Alberta, including that which is on private land. In exchange, the rightful owners of that space received nothing.

In Ontario, it is recognized that the surface owner owns the pore spaces on his or her property. For example, at the Dawn Storage Area in the Sarnia region, which is one of the largest natural gas storage areas in North America, landowners rent their pore space to the gas storage company. Landowners receive an annual fee for the use of the storage space.

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