This is part [part not set] in our series Property rights in Canada

Without property rights safeguards, governments can literally seize the land beneath your feet

Joseph QuesnelThe precarious state of property rights in Canada has been thrust into the spotlight, and it’s a subject that should concern us all. Canadians must become active at the local and provincial level if they want their property rights to be respected by governments.

The Frontier Centre for Public Policy’s Canadian Property Rights Index highlights a disturbing reality: our property rights are often at the mercy of political whims. This challenges our deep-seated assumptions about ownership, bringing the nature of our property rights into question. We, as Canadians, need to understand the stakes and take an active role at both the local and provincial levels.

It’s vital to recognize that the current system, rooted in British common law and feudal inheritance, where the Crown retains underlying title to all land and we are only given conditional rights and interests in that land, means that the government can, theoretically, seize the land beneath our feet. Even though we might think we “own” it, the government could seek that title if specific processes are followed.

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The situation emphasizes a failure to enshrine property rights in our constitution, leaving legislative power immense and property rights vulnerable. A more than century-old ruling, Florence Mining Co. Ltd v. The Cobalt Lake Mining Co. Ltd, poetically noted that even “The prohibition ‘Thou shalt not steal’ has no legal force upon the Sovereign Body.”

Our politicians continually seek to limit property rights, especially regarding compensation when local regulations diminish property value. So how can we make them understand the importance of these rights?

Looking to the United States might provide inspiration. Both Canada and the U.S. share a common British sense of rights and a similar system of expropriation. The crucial difference lies in the U.S. Constitution, where property rights are explicitly defined. Yet, the American experience, especially the Supreme Court ruling in Kelo v. City of New London, where the court ruled that eminent domain could be used to transfer land from one private landowner to another in the name of economic development without violating the Fifth Amendment. This ruling shows that even constitutional protections can be reinterpreted in ways that limit those rights.

Tom Flanagan, a prominent Canadian political scientist, is skeptical about constitutionalizing property rights in Canada, fearing judges might interpret rights in limiting ways. Once in the constitution, he said, these things are beyond fixing.

Post-Kelo, the U.S. saw an outpouring of laws to protect against eminent domain abuse, and groups committed to safeguarding property rights emerged. Canada needs a similar mobilization. Citizen groups, collaborating with independent researchers and think tanks, must focus on reforming provincial and local laws to prevent governmental infringement on property rights.

Before we even contemplate the inclusion of property rights in our constitution, what Canadians really need is a well-funded, citizen-led movement. This movement should aim to guard rights at the local and provincial levels, pushing against the fragility of our current situation and striving to ensure that our property rights are not just theoretical but practical and respected by our government.

Only then will we truly “own” the land under our feet. The time to act is now.

Let’s not leave our rights to the whims of politicians and policymakers. Let’s take control of our property rights, for ourselves and future generations of Canadians.

Joseph Quesnel is a senior research associate with the Frontier Centre for Public Policy. He is the author of the newly revised Canadian Property Rights Index.

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