ALSA and the property rights debate in Alberta: a certificate of title to land is not a “statutory consent”

PDF version: ALSA and the property rights debate in Alberta: a certificate of title to land is not a “statutory consent” 

Statute commented on: Alberta Land Stewardship Act, SA 2009, c.A-26.8

There is significant public debate in Alberta about a series of measures introduced and passed by the provincial government over the last 18 months. These measures include: (1) the Land Assembly Project Area Act (sometimes known as Bill 19, now SA 2009, c. L-2.5, yet to be proclaimed), (2) the Electric Statutes Amendment Act, SA 2009, c.44 (Bill 50), (3) the Alberta Land Stewardship Act, SA 2009, c.A-26.8 (ALSA), and (4) Bill 24, the Carbon Capture and Storage Statutes Amendment Act (Alberta), SA 2010, c.14. I won’t deal with all aspects of the debate but I do want to comment on one aspect of the debate as it relates to ALSA.

ALSA is likely one of the most important statutes adopted by the provincial legislature in the last couple of decades. It is powerful legislation but it needs to be. The statute is concerned above all else with landscape level planning, cumulative effects management and establishing limits and thresholds to growth and development – all as a means to foster the maintenance of healthy ecosystems and a vibrant economy. In order to do this the legislation needs to break down departmental silos within government and provide the authority to restrict the level of activities that can be carried out on the landscape. For a balanced account of the legislation see Alan Harvie and Trent Mercier, “The Alberta Land Stewardship Act and its Impact on Alberta’s Oil and Gas Industry” (2010), 48 Alberta Law Review 295 – 330, as well as more presentations on ALSA on the Faculty of Law’s website.

But the legislation is very much a work in progress. It is impossible to assess whether it has achieved its lofty and important goals until we see the first plans, those for the Lower Athabasca and the South Saskatchewan.

I want to focus here on one claim that is being made by those who see ALSA as an unreasonable attack on the rights of private property owners. This is the claim that a regional plan can extinguish a certificate of title to land without going through the provisions of the Expropriation Act (RSA 2000, c. E-13), an Act which provides procedural and substantive protections to landowners. One author closely associated with this claim is Keith Wilson, a lawyer practicing in St. Albert. I think that this claim is incorrect, but before giving my reasons for that conclusion here is the argument that underlies the claim.

The short form of the argument is this: (1) a regional plan may extinguish a “statutory consent”, (2) the term “statutory consent” is broadly defined in ALSA and includes an “instrument”, (3) “instrument” is a defined term in the Land Titles Act and includes a certificate of title, ergo, (4) a regional plan may extinguish a certificate of title.

Since this is a law blog readers will want to see the texts that support this conclusion so here is the longer version of the argument.

(1) A regional plan may extinguish a statutory consent.

This first step in the argument rests upon s.11 of ALSA which provides as follows:

11(1) For the purpose of achieving or maintaining an objective or a policy of a regional plan, a regional plan may, by express reference to a statutory consent or type or class of statutory consent, affect, amend or extinguish the statutory consent or the terms or conditions of the statutory consent.

(2) Before a regional plan includes a provision described in subsection (1), a Designated Minister must

(a) give reasonable notice to the holder of the statutory consent of the objective or policy in the regional plan that the express reference under subsection (1) is intended to achieve or maintain, and

(b) provide an opportunity for the consent holder to propose an alternative means or measures of achieving or maintaining the policy or objective without an express reference referred to in subsection (1), including, if appropriate, within a regulatory negotiation process referred to in section 9(2)(j).

This first step in the argument must be correct.

(2) The term “statutory consent” is broadly defined in 2.2(aa) of ALSA and includes an instrument:

“statutory consent” means a permit, licence, registration, approval, authorization, disposition, certificate, allocation, agreement or instrument issued under or authorized by an enactment or regulatory instrument;…

This observation is also correct.

(3) Instrument is a defined term in s.1(k) of the Land Titles Act, RSA 2000, c. L- 4, and includes a certificate of title:

“instrument” means (i) a grant, certificate of title, conveyance, assurance, deed, map, plan, will, probate or exemplification of will, letters of administration, or an exemplification of letters of administration, mortgage or encumbrance, (ii) a judgment or order of a court, (iii) an application under section 75, or (iv) any other document in writing relating to or affecting the transfer of or dealing with land or evidencing title to land;…

This observation is also correct.

Ergo (4) a regional plan may extinguish a certificate of title.

In my view this fourth and final step is a step too far. It may be a possible interpretation of s.11 but I don’t think that it is an interpretation that would ever find support in a Canadian court. Here are four reasons for that conclusion.

First, the plain meaning of the term “statutory consent” is that it is an authorization to do something that would otherwise be prohibited by statute. A certificate of title (CT) is not such a beast. A CT is conclusive proof of title to a particular tract of lands as to an estate in fee simple. It is not an authorization to engage in something that might otherwise be prohibited by statute. To argue that it is is to mix and conflate ideas of property with ideas of regulation and permitting.

Second, ALSA does not itself define the word “instrument”. There is an argument that when interpreting one statute it is possible to borrow the meaning of a term as defined in another statute but only if the two statutes are in pari materia, (i.e. cover the same subject matter); if they are not, such a borrowing is impermissible. It is not clear to me that ALSA and the Land Titles Act are in pari materia. The Land Titles Act (LTA) deals with private law issues and the property relationships between those who have private claims in relation to the same lands. The LTA does not deal with the broader stewardship concerns that animate ALSA or other environmental statutes such as the Environmental Protection and Enhancement Act, RSA 2000, c. E- 12.

Third, a decision to extinguish a certificate of title is an expropriation. We have an expropriation statute. It is unreasonable to interpret s.11 of ALSA as providing an additional and alternative means of effecting an expropriation unless that is the only possible interpretation of the Act. In fact that is not the case since ALSA expressly addresses the circumstances under which a regional plan may authorize an expropriation. Section 9 is the relevant provision:

9(1) A regional plan may contain provisions that the Lieutenant Governor in Council considers necessary or appropriate to advance or implement, or to both advance and implement, the purposes of this Act.

(2) Without limiting subsection (1), a regional plan may
…….

(h) authorize expropriation by the Crown under the Expropriation Act, including expropriation of mines and minerals;…

In sum, I do not believe that there is any serious possibility that a court would support the claim that the statutory consent provision of ALSA creates another way in which the province can expropriate an estate in fee simple evidenced by a certificate of title.

Why then do well qualified commentators urge the contrary? Do they genuinely believe that a court will follow an interpretation of ALSA that permits drive-by expropriation? Or is this simply a political argument that aims to dilute ALSA‘s goals and objectives, preserve the status quo (no limits to development), and to ensure that the first ALSA regional plans will be weak and ineffective and that ALSA will be a toothless paper tiger?

RSS
Follow by Email2k
Facebook0
Google+
http://ablawg.ca/2011/02/11/alsa-and-the-property-rights-debate-in-alberta-a-certificate-of-title-to-land-is-not-a-%e2%80%9cstatutory-consent%e2%80%9d/
LinkedIn

About Nigel Bankes

B.A., M.A. (Cantab.), LL.M. (UBC). Professor. Chair of Natural Resources Law. Member of the Alberta Bar. Please click here for more information.
This entry was posted in Environmental, Property, Protection of Spaces. Bookmark the permalink.

9 Responses to ALSA and the property rights debate in Alberta: a certificate of title to land is not a “statutory consent”

  1. Laura Bowman says:

    Nigel, fantastic analysis here that is very important to the public debate in Alberta.

  2. Anonymous says:

    Except Nigel, how can a complainant access the courts? The SLA provides:

    “Binding nature of regional plans
    15(1) Except to the extent that a regional plan provides otherwise, a regional plan binds
    (a) the Crown,
    (b) local government bodies,
    (c) decision?makers, and
    (d) all other persons.
    (2) Subsection (1) is given effect, if at all, only
    (a) by the provisions of the regional plan itself,
    (b) in accordance with another enactment, or
    (c) as a result of an order of the Court of Queen’s Bench under section 18.
    (3) Subject to subsection (5), subsection (1) does not
    (a) create or provide any person with a cause of action or a right or ability to bring an application or
    proceeding in or before any court or in or before a decision?maker,
    (b) create any claim exercisable by any person, or
    (c) confer jurisdiction on any court or decision?maker to grant relief in respect of any claim.
    (4) For the purposes of subsection (3), a includes any right, application, proceeding or request to a court for
    relief of any nature whatsoever and includes, without limitation,
    (a) any cause of action in law or equity,
    (b) any proceeding in the nature of certiorari, prohibition or mandamus, and
    (c) any application for a stay, injunctive relief or declaratory relief.
    (5) Subsection (3) does not apply in respect of an application by the stewardship commissioner to the Court
    of Queen’s Bench under section 18.”

    Is this not a challenge to the inherent jurisdiction of the s. 96 Courts?

  3. David Elliott says:

    There are undoubtedly important questions of public policy that should be debated as regional plans are developed. The preposterous suggestion that ALSA regional plans can extinguish land titles is not one of them, as this blog succinctly explains.

  4. Thanks so much. Many agitated folk would benefit from reading this.

  5. Keith Wilson says:

    Thank you to Nigel Banks for stimulating a discussion about the legal features of the Alberta Land Stewardship Act. I respectfully disagree with the analysis and conclusions of his blog post above. I will provide a detailed response including references to case law. In the meantime, I would encourage readers to consider whether ALSA would allow a land-title holder access to the Courts to advance the interpretation Nigel suggests. Sections 13(1) and 15 demonstrate that the answer is no. Secondly, I do not believe (unfortunately) that the Expropriation Act would apply as described above and will explain why. Finally, the analysis in the blog post is predicated on the proposition that there is fundamental distinction at law and fact between a “land title” and other regulatory approvals for resource use. I did not think that the purported distinction is valid in the context of ALSA and will explain why.

    In short, I stand by my legal interpretation of ALSA and the scope of the Cabinet’s discretionary powers to “extinguish” land titles under section 11.

    Keith Wilson
    Wilson Law Office

  6. Nigel says:

    Dear anonymous and Keith,

    Both of you raise a question as to whether a party who suffers an extinguishment of a certificate of title through s.11 of ALSA (something which I don’t expect to happen) may raise the validity of that “extinguishment” in the regular courts. Here are my reasons for thinking that such a claim could be made.

    The general rule is that a person with standing can always commence an application for judicial review under the Crown practice rules to question whether or not a power delegated by the legislature to the executive or an official has been lawfully exercised. As you point out, this opportunity is constitutionally protected by s.96 of the Constitution Act, 1867. The legislature may circumscribe this right of access to the provincial superior courts by including a privative clause in the legislation but it cannot completely exclude the liberty of a person with standing to question the jurisdictional basis of the exercise of a delegated power. This is a core part of what we mean by the rule of law.

    Hence it is my opinion that if a regional plan purported to extinguish a certificate of title that would be unlawful for the reasons given in the blog. Furthermore, I think it is clear that the registered owner would be able to seek judicial review of the regional plan and either a declaration of invalidity or an order in the nature of certiorari quashing that part of the plan.

    Does s.15 of ALSA cause me to change that opinion? No and that is because subsection (3) does not operate as a general privative clause designed to put a regional plan off-limits to the Courts. It is much more targeted. If the legislature had intended s.15(3) to serve as a general privative clause it would have said something like this:

    No regional plan nor the application of that plan may be restrained by injunction, prohibition or other process or proceedings in any court, nor is a regional plan removable by certiorari or otherwise into any court.

    Instead the actual text of subs.(3) which provides that the binding nature of a regional plan [the reference is to subs.(1)] does not: (1) give a person a cause of action, (2) create a claim, or (3) confer jurisdiction in respect of a claim. While an application for judicial review is ordinarily neither a cause of action nor a claim subs.(4) deems a proceeding for certiorari, prohibition or mandamus and an application for injunctive relief to be a “claim”.

    But it is important to note that s.15 is concerned with the implications of making a plan “binding”. Subsection (3) tells us that a person cannot take advantage of that binding nature and bring an action against another party as a consequence of its binding nature; the only person who can do so is the Stewardship Commissioner. The section does not say that no person may question whether a plan is a lawful plan. In other words subs.(3) must be read in the context of both subs.(1) and s.18 (which is the section that authorizes the Stewardship Commissioner to take action before the Courts to give binding effect to a plan (but only a valid plan)). See also and consistently with this reading of the section: Keller v. Municipal District of Bighorn No. 8, 2010 ABQB 362 at para 52

    I agree with the Municipality that, by excluding references to individuals or persons other than the Stewardship Commissioner, the Legislature intended to exclude anyone other than the Stewardship Commissioner from bringing an application for judicial review [of municipal by laws, not a regional plan] on the basis of noncompliance with ALSA. I agree with the Municipality that, by excluding references to individuals or persons other than the Stewardship Commissioner, the Legislature intended to exclude anyone other than the Stewardship Commissioner from bringing an application for judicial review on the basis of noncompliance with ALSA. This interpretation is consistent with s.15(3) of the Act, which expressly limits the ability to bring any action concerning compliance with a Provincial Regional Plan to the Stewardship Commissioner.” [emphasis and bracketed text supplied]

    It may also be important to note that a s.96 court does not need to have any jurisdiction conferred upon it (see s.15(3)(b)) by any enactment in order to consider an application for judicial review; such a court, as you point out, has an inherent jurisdiction.

    Finally, if the legislature had been astute enough to draft a bullet proof privative clause (which it has not done) then you and I would probably agree that such a clause would be unconstitutional.

    In sum I do not believe that a regional plan that purported to extinguish a certificate of title would be immune from an application for judicial review. The owner can bring the application in his or her own name and does not need to rely on the stewardship commissioner to pursue the action.

    Nigel

  7. Keith Wilson says:

    Thank you again to Professor Bankes for stimulating an important discussion which, in effect, relates to the scope of the rule of law in Alberta under recent legislation.

    My detailed response to Professor Bankes’ original blog post is now available at the following web address:

    http://www.landownersagainstbills.com/Wilson%20Response%20to%20Professor%20Bankes%20re%20ALSA%20and%20Land%20Titles.pdf

    I have just read Professor Bankes’s comments posted above (February 16, 2011 at 10:59 am). I would point out that one needs to consider section 13(1) of ALSA and review the Alberta Hansard to understand that it is the clear intention of the Alberta Government to prevent citizens directly affected by Cabinet decisions under regional plans from having access to the courts.

    Minister Ted Morton who championed ALSA through the law-making process has been absolutely clear that one of the goals of ALSA is to remove the role of the courts. He was quoted as saying the following in the Edmonton Journal on May 27, 2009: “We want political accountability—not judge-made law.” He made numerous references to this objective and key characteristic of ALSA during the legislative debates which are documented in the transcripts of Hansard.

    Further, a couple of points about Professor’s Bankes’ comments from today:

    – Cabinet will decide which “statutory consents” (land titles, water licenses, oil & gas leases, timber agreements, grazing leases, etc) to “extinguish”—these will not be decisions of a “tribunal” or administrative delegate;
    – Professor Bankes does not address the critical section in ALSA regarding the role of the courts: section 13(1);
    – The Administrative Procedures and Jurisdiction Act does not apply as suggested in paragraph 2 of Professor’s Bankes’ comment above—the procedural remedies of this Act apply only to the government bodies listed in the regulations and the Cabinet is not one of them;
    – Section 96 of the Constitution Act does not solve the problem created by ALSA re removal of the role of the courts—that constitutional provision extends to “tribunals” and I could find no authority for the proposition that the Cabinet is a “tribunal”;
    – Keller v. Municipal District of Bighorn No. 8 does not address the issue of whether a person whose rights are extinguished by section 11 can seek remedies in the courts;
    – The Assistant Deputy Minister and Stewardship Commissioner under ALSA has confirmed in writing that the statement in my 2009 legal research paper for the Legal Education Society of Alberta about ALSA on this point is “accurate”. My statement was that the Act contains a statutory bar against judicial review or commencing an action against the government for something done under a regional plan approved by the Cabinet;
    – Government Ministers and MLAs have publically defended their decision to remove the role of the courts—they have advocated that having “political accountability” is better than the courts;
    – Numerous public presentations by government officials about ALSA include the following slide:
    “Protection From Court Review By:
    – Separating process from decision-making to prevent successful process challenges
    – Making Regional Plans legislative instruments which typically the Courts will not second-guess
    – Includes a privative clause to help stop contents of plans being grounds for legal action”

    It continues to be troubling to me and many other Albertans that legislation has been enacted that gives the Cabinet unfettered power to “extinguish” vested rights, limits compensation, and removes the traditional role of the Courts.

    Keith Wilson
    Wilson Law Office

  8. David Laidlaw says:

    Sorry Nigel, I was the poster of the Anonymous comment listed above – I had listed out the provisions of the SLA and was going on to make another point when I clicked on the Submit Comment button by mistake.

    The other point I was making was more along the lines of whether The Province of Alberta has a long “authoritarian” tradition behind it?

    Not only have had we only had only four parties that went on to form a government – Liberal (1905 – 1921), United Farmers of Alberta (1921-1935), Social Credit (1935-1971) and Progressive Conservative (1971-?) we have never had a minority government.

    Consider:

    -the UFA’s Sexual Sterilization Act of Alberta (1928-1972) – which contained a similar bar to claims against the doctors and eventually all other participants in an operation
    -Social Credit’s funny money scheme (prosperity certificates” in the late 1930’s which led to legislation attempting to place banks under provincial jurisdiction and the consequent constitutional crisis when the Lieutenant Governor John Bowen refused to sign bills into law (the laws were all declared unconstitutional by the Privy Council)
    -the 1937 Accurate News and Information Act – which would require newspapers to print government rebuttals to articles critical of the government – again not signed by John Bowen and found unconstitutional by the Supreme Court of Canada
    -it is arguable that the Progressive Conservative Government’s delegation of decision making and bylaw powers to private associations ie. the Tire Recycling Board
    -the current practice of making substantive and undebated changes to the law by way of Orders in Council
    -the recent proposal you commented on with respect to the ERCB proposing to change legislation via Bulletin:
    http://ablawg.ca/2010/12/08/the-energy-resources-conservation-board-proposes-to-repeal-provincial-legislation/
    -the ongoing resistance to the inclusion of homosexuality as an analogous term in the Alberta Human Rights Code – the Vick case
    -the limited sittings of the Alberta Legislature, the crushing majorities – the lack of long question periods etc.

    For more, at least from a Vice-Regal perspective see:

    http://www2.parl.gc.ca/Sites/LOP/Infoparl/english/issue.asp?param=187&art=1263

    Not a great history of of parliamentary democracy.

    The ALS has “nice language” that touches on local decision making, public participation, environmental standards etc., however, for the most part these consultations and inputs feed into a “black box” at the Cabinet level. The results of the black box which can be anything other than nice.

    Hardly transparent and hardly democratic – in fact perhaps maybe it is authoritarian?

    While I am sure that the political outrage over vacating a Certificate of Title may make that decision unpalatable, I am not so sanguine that it would be legally impossible under the current ALS.

    Of course therecent Speech From the Throne also made mention that:

    “Government is taking steps to ensure that legislation to support the development of regional plans fully respects landowner rights.”

    It will be interesting to see what changes are made.

  9. David Laidlaw says:

    Well it appears that we have some answers. Today Bill 10 passed First Reading in the Alberta Legislature. The Provincial Government’s press release is located at:

    http://alberta.ca/home/1410.cfm

    The Bill can be located at:

    http://www.assembly.ab.ca/net/index.aspx?p=bills_status&selectbill=010

    This is a PDF link but the Bill is a small PDF approx. 243KB.

Leave a Reply

Your email address will not be published.