Category Archives: Property

Bill 1, Respecting Property Rights Act: A Damp Squib and a Good Thing Too

By: Nigel Bankes

PDF Version: Bill 1, Respecting Property Rights Act: A Damp Squib and a Good Thing Too

Bill Commented On: Bill 1: Respecting Property Rights Act

The good news about Bill 1 for those with communitarian views is that Bill 1 does not change the law of Alberta one iota. The bad news about Bill 1 for those of a more libertarian persuasion is that Bill 1 does not change the law of Alberta one iota.

Here is the entire text of Bill 1 from its bizarre preambular provisions to its single operative clause:

Preamble

WHEREAS private ownership of land is a fundamental element of Parliamentary democracy in Alberta;

WHEREAS the Alberta Bill of Rights recognizes and declares the right of the individual to the enjoyment of property and the right not to be deprived thereof except by due process of law;

WHEREAS the Government is committed to consulting with Albertans on legislation that impacts private property ownership;

WHEREAS the Land Assembly Project Area Act was enacted by the Legislature in 2009 and was amended in 2011 but has not been proclaimed in force; and

WHEREAS the repeal of the Land Assembly Project Area Act reaffirms the government’s commitment to respect individual property rights;

THEREFORE HER MAJESTY, by and with the advice and consent of the Legislative Assembly of Alberta, enacts as follows:

Land Assembly Project Area Act Repeal

  1. The Land Assembly Project Area Act, SA 2009 cL-2.5, is repealed.

This post addresses two questions. First, how is it that despite all the pomp and circumstance surrounding the introduction of this Bill, legally, it changes nothing? And second, why, at least in the opinion of this author, is that a good thing?

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Disagreement in the Court of Appeal about the Wisdom of Judicial Economy

By: Jonnette Watson Hamilton

PDF Version: Disagreement in the Court of Appeal about the Wisdom of Judicial Economy

Case Commented On: Calgary Jewish Academy v Condominium Plan 9110544, 2014 ABCA 279

In this judgement, the Court of Appeal reversed the decision of Justice Adele Kent in Calgary Jewish Academy v Condominium Plan 9110544, 2013 ABQB 134, where she had found the Academy’s lease of a portion of the Condominium Corporation’s land invalid. The Court of Appeal decision is of interest because of the different approaches taken by Justices Clifton O’Brien and Alan Macleod on the one hand, and Justice Brian O’Ferrall in a concurring opinion on the other, and what those different approaches might say about the wisdom of judicial or decisional economy. The case also illustrates (yet again) that no good deed goes unpunished.

The Calgary Jewish Academy, the plaintiff in this matter, and the condominium complex, the defendant, are neighbours on land adjacent to Glenmore Trail. The Academy has operated a school on their land since 1958. In 1978, the City of Calgary made changes to Glenmore Trail that cut off emergency access to the school. Fortunately, the City owned the land adjacent to the school and leased a portion of it to the Academy for use as a parking lot and for emergency access. The lease—the first lease—was for 10 years, and the Academy had an option to renew for a further period of 10 years on the same terms and conditions. The rent was one dollar per year. A caveat claiming an interest in land pursuant to the lease was filed against the City’s land.

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What Does Radical Title Add to the Concept of Sovereignty?

By: Nigel Bankes and Jonnette Watson Hamilton

PDF Version: What Does Radical Title Add to the Concept of Sovereignty?

Case commented on: Tsilhqot’in Nation v British Columbia, 2014 SCC 44

The Crown’s radical title plays a larger role in the Supreme Court of Canada decision in Tsilhqot’in than it has in the Court’s previous Aboriginal rights decisions. However, it is unclear what the Court means by radical title in Tsilhqot’in or what work the concept is performing. One way to try to figure this out is to reflect on our understanding of the relationship between Aboriginal title and the Crown’s radical title before the Tsilhqot’in decision, describe Tsilhqot’in’s discussion of radical title, and then consider whether it adds anything to the concept of sovereignty. Continue reading →

Establishing Aboriginal Title: A Return to Delgamuukw

By: Jonnette Watson Hamilton

PDF Version: Establishing Aboriginal Title: A Return to Delgamuukw

Case commented on: Tsilhqot’in Nation v British Columbia, 2014 SCC 44

The declaration of Aboriginal title by the Supreme Court of Canada on June 26, 2014 — a first in Canada — is a momentous decision that should have long-lasting significance for the Tsilhquot’in Nation, other Aboriginal groups, and the rest of Canada. The unanimous Supreme Court decision made new law in the areas of the duty to consult and accommodate, governments’ justification of infringements of Aboriginal title, and federalism — matters that my colleagues Nigel Bankes, Sharon Mascher and Jennifer Koshan will be writing about. On the law of Aboriginal title — the focus of this post — the decision is extremely important for at least two reasons. First, as part of its return to principles set out in the Court’s 1997 decision in Delgamuukw v British Columbia, [1997] 3 SCR 1010, Tsilhqot’in Nation includes a return to an equal role for Aboriginal perspectives that includes Aboriginal  laws, instead of the exclusive focus on Aboriginal practices that was a feature of R v Marshall; R v Bernard, 2005 SCC 43, [2005] 2 SCR 220, the Court’s second post-1982 decision on Aboriginal title. Second, Tsilhqot’in Nation clarifies an understanding of occupation that accords with a territorial approach to Aboriginal title, one that does not require and piece together intensive use of well-defined tracts of land. In doing so, the Court turned its back on the approach it took in Marshall/Bernard, an approach that was the source of the arguments made by the governments of Canada and British Columbia in Tsilhqot’in Nation and the basis of the British Columbia Court of Appeal decision in this case (William v British Columbia, 2012 BCCA 285). The June 26 decision therefore brings increased certainty to the law of Aboriginal title by clarifying the type of occupation that will ground Aboriginal title. It also increases the likelihood of more successful Aboriginal title claims and, hopefully, more intensive and good faith negotiations in modern land claims and treaty processes.

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Conservation Easements and Fraud under the Land Titles Act

By: Jonnette Watson Hamilton

PDF Version: Conservation Easements and Fraud under the Land Titles Act

Case commented on: Nature Conservancy of Canada v Waterton Land Trust Ltd, 2014 ABQB 303

This 130 page, 605 paragraph judgment penned by Justice Paul R. Jeffrey deals with a number of note-worthy legal issues in a fascinating factual context. The case started when the Nature Conservancy of Canada (NCC) tried to enforce a conservation easement that it had registered against its title to the Penny Ranch, a large cattle ranch near Waterton Lakes National Park in the south-west corner of the province. One of the main purposes of the conservation easement was to ensure that, when the NCC sold the Penny Ranch, development by the purchasers or their successors in title would not impede wildlife migration through the area, an area which the NCC described as the “North American Serengeti.” The case ended (barring appeals) with Justice Jeffrey finding that defendant’s new bison fence was not a breach of the conservation easement and ordering the NCC to pay over $700,000 to Thomas Olson for the NCC’s failure to issue him a timely tax receipt. In between, numerous legal issues arose, including: (1) the nature of conservation easements under the Alberta Land Stewardship Act; (2) contract rectification; (3) fraud as an exception to indefeasibility; (4) rectification of a caveat with a missing page in the underlying document; and (5) damages for the late issuance of a tax receipt. In this post, I will deal with only one of those issues and that is the fraud issue. Colleagues will address some of the other issues. Continue reading →