Property shapes behaviour:surface rights

As the Property Rights Critic in the Alberta legislature, it is also my task to keep an eye on surface rights issues.

As the Property Rights Critic in the Alberta legislature, it is also my task to keep an eye on surface rights issues. This being true, I was recently given the opportunity to preview a soon-to-be-released publication called ‘Property & Freedom,’ published by Grassroots Alberta.

The publication affirms that property rights and human rights are the same thing, and explains why. Quoting economist Walter Williams, it states: “If we buy into the notion that property rights are less important, or are in conflict with, human or civil rights, we create false distinctions and play into the hands of those who seek to control our lives.”

One section of the publication is written by Edmonton-area lawyer Keith Wilson, one of Alberta’s foremost defenders of landowner rights. Wilson says the federal government first acquired legal authority over the lands that now make up Alberta back in 1870. Seven years later, an Order-in-Council declared that homestead lands in western Canada would reserve the mineral rights for the Crown.

About forty years later, in 1930, a federal-provincial agreement then gave the Alberta government ownership and control of 86 per cent of the province’s minerals. As development of these lands occurred, it was to be expected that one party owning the minerals and another owning the surface would lead to disputes.

Wilson says an important legal dispute was settled when the court ruled that the mineral owner possesses a common law right of surface entry, stating that apart from surface access owning minerals would be meaningless.

Yet an important question arose, namely: Who is lawfully responsible for compensating the surface owner for intrusion, loss of use, and much more? Wilson says that question was settled by the courts in 1988 when an energy company claimed that its cost provisions in Alberta’s Surface Rights Act discriminated against oil companies. The Alberta Court of Appeal reviewed the surface rights legislation, and then ruled that whenever private land is encroached upon by the mineral owner, the surface owner is entitled to compensation.

The court said that farms in Alberta were largely obtained by homesteaders on a take-it-or-leave-it basis (they had no say over the loss of mineral rights), and that they paid for those homesteads with sweat, rather than treasure. The court also said that when a well-driller arrives the farmer would see him as a surface intruder/taker, no different from those who might take land for a pipeline or highway project. The court thus affirmed the Surface Rights Act as a means to provide justice for the landowner.

Wilson’s chronology about landowner rights and surface rights legislation ends just prior to the provincial government’s introduction of a series of land bills (2, 19, 24, and 36), each designed to trample the legitimate rights of ranchers and farmers.

The publication’s unfortunate conclusion is that over the past ten years, landowner rights in Alberta have been greatly diminished at the hand of government. Ranchers and farmers no longer have the statutory right to a hearing when an industrial project is imposed upon private land, and the Alberta Land Stewardship Act (Bill 36), gives the bureaucracy (by authority of cabinet) final say over what a piece of private land may or may not be used for.

Historically, only the legislature could make or amend Acts during public sessions of the legislature. Now, under Bill 36, cabinet can in effect make property law and amend it from the secrecy of the cabinet room.

 


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