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OFA report on property rights

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					                                  Property Rights

The following resolution from Lanark was referred to the Land Use Committee.

Lanark - Property Rights (05-07-343)

WHEREAS many people are interested in the issue of property rights, and

WHEREAS a Private Member’s Bill has been introduced in the House of Commons,
which is passed into law would enshrine property rights into the Canadian Constitution,
and

WHEREAS very few people understand the differences between having property rights
in Civil Law as we currently have and having property rights in Constitutional Law as in
the United States,

THEREFORE BE IT RESOLVED that the Ontario Federation of Agriculture study the
issue and report to the membership the findings on the issue.

The Land Use Committee subsequently asked the Lanark Federation to clarify “study
the issue”, and they directed the Committee to “examine the pros and cons of property
rights as it impacts upon the individual farmer”.

The Ontario Federation of Agriculture has addressed this subject in the past. In
September 1994, OFA’s Board adopted the following Statement of Landowner’s
Rights:

The repatriation of the Canadian Constitution did not confirm property rights for
Canadians. The following draft Statement of Landowners’ Rights is our attempt ensure
that farm landowners receive equitable and fair treatment regarding the usage and
stewardship of their land.

1.    Everyone has the right to use their property in a way they may see fit, so long as
      they conform to provincial and federal legislation, and do nothing that will be a
      legal nuisance to their neighbours.
2.    No landowner shall be deprived of that right without due process.
3.    This due process shall include personal notice of an impending decision or
      action, the right to be heard before a decision is made, and an explanation of
      what supports the decision.
4.    If it is deemed necessary to preserve all or part of a private property in the public
      interest, the public has a responsibility to compensate equal to the loss of real
      value and future use of the property.
5.     There must be a number of options presented to an affected landowner from
       voluntary participation to the process of expropriation.
6.     All property owners shall be treated fairly and with respect.
To focus its discussions, and to try to maintain a degree of consistency as they met with
different individuals, the Committee developed five (5) guiding questions;

1.    What specific rights are referred to when using the term “property rights”?
2.    If successful in having property rights recognized in the constitution, what
      activities could farmers do then, that they cannot do now?
3.    How would the protection of property rights change the operations of
      government (federal, provincial, municipal)?
4.    If a conflict arose between two neighbouring landowners, where one’s
      exercise of his property rights negatively affected the other’s rights to their
      full enjoyment of their property, who’s rights take precedence?
5.    In a number of articles, etc. the authors use the term “down zoning”. What
      is meant by this term? Can you provide examples of it?

What is “property”? Webster’s dictionary defines property as “something owned or
possessed, a piece of real estate, the exclusive right to possess, enjoy and dispose of a
thing; something to which a person has legal title”. A legal dictionary defines property as
“that which is capable of ownership”.

It is vital to our understanding of the issue that the term “property” be clearly defined.
Obviously land and associated buildings are one form of property. Tangible assets such
as farm machinery, crops and livestock are further examples. Personal property such as
vehicles, furniture, clothes, books, works of art, stocks and bonds should also be
included. For farmers producing supply managed commodities, the quota they possess
that entitles them to produce should also be recognized as property.

Some of the literature on this subject also notes that US courts have interpreted
property to include various government benefits, such as welfare payments, old age
pension benefits and unemployment benefits. At this time, we are not aware of similar
jurisprudence from Canada.

For the purposes of this paper, property will include;
$      land and associated buildings,
$      farm machinery,
$      crops and livestock,
$      quota rights to produce and market supply managed commodities,
$      personal property such as furniture, books, works of art, and
$      stocks, bonds, etc.
Advocates of enshrining property rights in the Canadian Constitution routinely point to
Article V of the United States Constitution as the example of entrenching private
property rights in a constitution. Article V states;
No person shall be held to answer for a capital, or otherwise infamous crime, unless on
a presentment or indictment of a Grand Jury, except in cases arising in the land or naval
forces, or the Militia, when in actual service in time of War or public danger; nor shall
any person be subject for the same offence to be twice put in jeopardy of life or limb;
nor shall be compelled in any criminal case to be a witness against himself, nor be
deprived of life, liberty or property without due process of law; nor shall private
property be taken for public use, without just compensation.

There is extensive case law on what constitutes a “taking”. It is not simply the
expropriation or taking through forced purchase, of an individual’s property. Many have
argued in the courts that government regulations that limit or restrict the use of one’s
property also constitute a “taking”. A 2005 Supreme Court ruling (Kelo et al. V. City of
New London [Connecticut] et al.) ruled that the city did have the authority to take
property through expropriation from a number of landowners on behalf of a private
developer who was undertaking a massive urban redevelopment scheme.

The Canadian Constitution, including the Charter of Rights and Freedoms, although
protecting a number of rights, does not expressly mention property. Among our Charter
protected rights are the following fundamental freedoms;
a)     freedom of conscience and religion;
b)     freedom of thought, belief, opinion, expression, including freedom of the press
       and other media of communication;
c)     freedom of peaceful assembly; and
d)     freedom of association.

The Charter also guarantees our democratic rights [Sec. 2-5], mobility rights [Sec. 6],
legal rights [Sec. 7-14], equality rights [Sec. 15] and official language rights [Sec. 16-
23].

Amending the Canadian Constitution, including the Charter of Rights and Freedoms, is
not an easy task. To pass, and amendment requires both of the following;
a)     resolutions of the Senate and the House of Commons, and
b)     “resolution of the legislative assemblies of at least two-thirds of the provinces that
       have, in the aggregate, according to the latest general census, at least fifty
       percent of the population of all of the provinces.”

Considering the amending formula, it would appear that it is highly unlikely that the
thresholds set out in point ‘b’ could be reasonably met. Another factor to bear in mind is
that in every province other that Quebec, the system of laws is based on British


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Common law. In Quebec, the system of laws is based on the Napoleonic Code.

Furthermore, Section 1 of the Canadian Charter of Rights and Freedoms sets forth the
principle that there will be limits on any Constitutional rights or freedoms. Section 1
states;
The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set
out in it subject only to such reasonable limits prescribed by law as can be
demonstrably justified in a free and democratic society.

Canadians posses a number of rights with respect to property. It can be bought, sold,
mortgaged, rented, given as a gift or bequeathed to one’s heirs.

The following list includes some of the items that could be impacted if property rights
are entrenched in our constitution;
6.     municipal by-laws
7.     severances
8.     zoning by-laws
9.     building permits
10.    land use planning
11.    MDS
12.    Provincial Policy Statement
13.    environmental regulations/treatment of agriculture under OWRA, EPA, etc.
14.    Farming and Food Production Protection Act
15.    Greenbelt, Places to Grow /equity in property
16.    expropriation

Following Lanark’s direction to list the pros and cons, we have tried to comment on the
points in the above list. It is extremely difficult to determine conclusively if the following
items would be a pro or a con with property rights enshrined in the Constitution.

All of the following may be in jeopardy following a change in the Constitution to include
private property rights.

1.     Municipal by-laws:
Municipalities may enact by-laws under many statutes. Some, if not carefully drafted,
can restrict farming activities. That being said, a number of municipalities have created
agricultural advisory committees, to provide input and advice to municipal council and
staff on the potential impacts of municipal actions. Not all municipalities have an
agricultural advisory committee. OFA recommends that all municipalities with lands
designated for agriculture, create and fund an agricultural advisory committee.
Furthermore, if a municipal by-law unduly restricts a normal farm practice, any farmer
or group of farmers, can apply to the Normal Farm Practices Protection Board for an


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exemption from any municipal by-law that unnecessarily restricts a normal farm
practice.

2.     Severances:
Currently the “right” to sever a lot from prime agricultural land is strictly limited by
provincial policy. Over the years, farm organizations and many farmers have come to
agree that the proliferation of non-farm development, usually on severed lots, is not in
the long term interest of agriculture. Current OFA policy opposes the creation of new
non-farm lots within prime agricultural areas.

3.      Zoning by-laws:
Broadly speaking, land is designated as rural, agricultural, residential, commercial,
industrial or institutional. Zoning by-laws dictate how lands within each designation may
be used. Zoning by-laws also direct where on each property buildings and structures
may be placed, including the separation distance between buildings on the same lot, set
back distances from roads and lot lines, overall building heights and the percentage of
the lot that can be covered by buildings.

4.     Building permits:
Some “property rights” proponents include the requirements to obtain a building permit
before construction as an example of unnecessary government intrusion. While
municipalities do collect a fee for a building permit, at the same time the permit process
does ensure compliance with municipal zoning by-laws as well as conformity to the
Ontario Building Code, meaning that the building is built in accordance with specified
design and engineering standards, and with approved materials and methods.

5.       Land use planning:
Land Use Planning establishes the process municipalities use to create an official plan
which sets out where within the municipality various types of growth should take place,
and various land uses should be promoted. As well, the processes for amending the
official plan and the process for making site specific changes are set out.

6.       Minimum Distance Separation (MDS):
Since 1970, the province has attempted to reduce the nuisance effects associated with
livestock and poultry odour by mandating sufficient separation between barns or
manure storage facilities where odours are created to neighbouring properties.
Formulas were developed to achieve adequate separation, both for new and expanding
livestock facilities (MDS II) as well as for new development adjacent to existing livestock
facilities (MDS I). The formulas were updated in 1995 and again in 2006.

7.   Provincial Policy Statement:
The Provincial Policy Statement (PPS) sets out the land use policy direction to


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municipalities on matters of provincial interest. The PPS enunciates the provincial
interest on a wide range of planning-related subjects; natural heritage, water,
agriculture, minerals and petroleum, mineral aggregates, cultural heritage as well as
natural and man-made hazards. Its also speaks to the provincial interest in housing,
employment lands, infrastructure to support growth and energy. OFA supported the
revisions to the PPS in 2005 that saw elimination of retirement severances and urban
expansion onto specialty crop lands.

8.     Environmental regulations/treatment of agriculture under OWRA, EPA:
Currently, the Environmental Protection Act exempts the spreading of manure in
accordance with normal farm practices. The Ontario Water Resources Act exempts the
taking to water to water livestock or poultry.

9.      Farming and Food Production Protection Act:
The Farming and Food Production Protection Act currently blocks property owners from
obtaining a court injunction against a neighbouring farmer, because the noise, odour,
dust, etc. from the farm operation causes a nuisance that deprives the neighbour of
their full enjoyment of their property. The full enjoyment of one’s property is a common
law right. The “right to sue” is blocked by the legislation. Determination if the source of
the odour, noise, dust, etc. is from a normal farm practice is made by the Normal Farm
Practices Protection Board. In addition, a farmer, or group of farmers, can apply to the
Normal Farm Practices Protection Board for an exemption from any municipal by-law
that unnecessarily restricts a normal farm practice.

10.    Greenbelt/Places to Grow:
Both acts are often cited as examples of the need for property rights. The Greenbelt Act
froze lands currently designated as “agricultural” within an area stretching from Niagara
Region through to Durham Region. The Places to Grow Act covers central southern
Ontario, and is intended to force most future residential as well as job growth into the
existing urban areas of the region’s major cities.

Among the issues raised with the Greenbelt Act were the loss of equity by farmers
whose lands were frozen, as well, the fact that the legislation did nothing to improve the
economic viability of farming, not only within the greenbelt area but also across all of the
province. Neither the Greenbelt Act nor subsequent programs have addressed the loss
of farm equity or the long-term economic viability of agriculture.

11.    Expropriation:
Expropriation is the compulsory acquisition of property, usually land, by the government,
or one of its authorized agencies.

Both the federal government, and the Ontario government have legislation on


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expropriation. For this paper, we will only comment on the Ontario legislation.

Under Ontario’s Expropriations Act, ministries are empowered to expropriate land for
government purposes. As well, municipalities are empowered to expropriate land for
their purposes. In addition, a number of agencies are authorized to expropriate land for
their purposes. Examples of agencies that have expropriation powers include school
boards, hospital boards, universities and utilities and pipelines.

Ontario’s Expropriations Act sets out the process for expropriation, as well as the
compensation paid to the landowner. In addition to compensation for the actual land
taken, landowners are entitled to additional compensation for matters such as
relocation costs, business losses, mortgage penalties and legal and appraisal
expenses.

Conclusions and Recommendations:

The key points in this subject pertain firstly to how property is defined, and secondly,
how the courts interpret that definition. While we can effect a degree of control over the
first, we have no control over the second. Any definition of property would have to be
crafted very carefully and with assurance that there was broad agreement on what
items were included as property, as well as what were excluded.

If property rights are ever entrenched in the Constitution, the single biggest impact
would be the right for anyone who believes that their rights have been infringed, to use
the Charter to seek remedy. This should be viewed as a pro.

It is uncertainty how entrenchment of private property rights would effect municipal
zoning, severance and land use rules. Clearly these would be the target of the
advocates for private property rights. This should be viewed as a con.

We simply cannot see into the future, and determine how our courts will rule on yet to
be asked questions, based un unknown definitions and legislation. As an example, the
Canadian Charter of Rights and Freedoms was adopted in 1982. Section 15(1)states;
“Every individual is equal before and under the law and has the right to the equal
protection and equal benefit of the law without discrimination and, in particular without
discrimination based on race, national or ethnic origin, colour, religion, sex, age or
mental or physical disability.”

Regardless of your opinions on same-sex marriage, it is safe to say that no one on
either side of this question envisioned that the courts would rule that statutes defining
marriage as between two people of the opposite sex were in violation of the Charter.



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Finally, the entrenchment of property rights into the Constitution is not a goal to be
pursued by a single organization. To entrench property rights will require broad support
from the entire populace.

In any case, it is our expectation that whenever government or a government agency
imposes restrictions on how private property may be utilized, that the property owner
receives compensation equal to the loss of value and future use of the property.
We therefore cannot definitively determine what the pros and cons of entrenchment
would be, either for farmers specifically, or all citizens in general. However, the OFA
Board’s position, as adopted September 1994, does provide a framework for how we
expect landowners to be treated by their governments.

The repatriation of the Canadian Constitution did not confirm property rights for
Canadians. The following draft Statement of Landowners’ Rights is our attempt ensure
that farm landowners receive equitable and fair treatment regarding the usage and
stewardship of their land.

1.    Everyone has the right to use their property in a way they may see fit, so long as
      they conform to provincial and federal legislation, and do nothing that will be a
      legal nuisance to their neighbours.
2.    No landowner shall be deprived of that right without due process.
3.    This due process shall include personal notice of an impending decision or
      action, the right to be heard before a decision is made, and an explanation of
      what supports the decision.
4.    If it is deemed necessary to preserve all or part of a private property in the public
      interest, the public has a responsibility to compensate equal to the loss of real
      value and future use of the property.
5.    There must be a number of options presented to an affected landowner from
      voluntary participation to the process of expropriation.
6.    All property owners shall be treated fairly and with respect.




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                                           Appendix ‘A’

The following points were provided to Wayne Caldwell by Paul Peterson, Barrister & Solicitor,
Toronto.

17.    The origins of Canadian law governing the ownership and use of privately owned land
       dates back to England in the middle ages. Under the feudal system in England only the
       king actually owned land. In the year 1215 AD., English barons aggrieved by “arbitrary
       infringements of personal liberty and rights of property” had King John grant the Magna
       Carta.
18.    The Magna Carta provided that, “No free man shall be taken, imprisoned, disseised,
       outlawed, banished, or in any other way destroyed, nor will We proceed against or
       prosecute him, except by the lawful judgement of his peers and the law of the land.”
       (Disseised is defined in Black’s Law Dictionary as “to wrongfully deprive (a person) of
       the freehold possession of property”)
19.    A fundamental principle of the Magna Carta was that no one, not even the king, was
       above the law. With respect to land, a primary purpose of the Magna Carta was to limit
       the arbitrary power of the king to take and use any land or property for his own
       purposes. It prevented, for example, the afforestation of lands by the king. This was a
       process by which the king could establish forests as hunting preserves for his own use
       regardless of pre-existing pasture or agricultural uses.
20.    By taking steps to protect the private “owners” from the crown, the Magna Carta laid the
       groundwork for the basic tension between the recognition of private property rights on
       the one hand, and the government control over the use of land on the other, that is still
       so apparent today.
21.    Essential elements of that feudal system remain today in the law of real property. The
       situation in Canada is summarized as follows, “a person does not, strictly speaking, own
       land. Instead, that person owns the fee simple estate or some interest in the land. It is
       the Crown that owns the land ....”
22.    The”owner” therefore, as that term is commonly used, is really the owner of a bundle of
       rights or powers including the rights to use the land, to live on it, farm it, sell it, lease it,
       mortgage it and to protect the land against trespass and nuisances, to list bu a few of the
       principle rights and powers.
23.    Of course, today we are used to the idea that the rights attached to land ownership are
       not absolute. The use and development of land and the transfer of ownership are all
       controlled through land use regulation, environmental laws, family law and taxation. In
       addition, the government can expropriate title to land or interests in land, subject to the
       obligation to pay compensation.
24.    However, the authority of the government to regulate land use is not unlimited. As
       outlined in case law, Canadian courts and tribunals have considered and limited the



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regulatory power of local municipal governments over land use. The case law is not as
extensive as in the United States where there is constitutional recognition of property
rights and well developed jurisprudence around the issue of whether land use
regulations amount to a “taking” of property in contravention of the constitution.
Nevertheless, Canadian courts have considered acceptable limits to government
regulation of private land.




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